Star, ID

Aug 12, 2022: Final Decision for Reconsideration of WTF Application 202102048-CU-A was . . . Denial

Aug 10, 2022: Request for Reconsideration of WTF Application 202102048-CU-A:

View This Aug 10, 2022 Video

 

2005 Ninth Circuit Ruling MetroPCS v. San Francisco:

“[the significant gap in coverage definition allows] cities to prevent certain
areas from being overburdened by a proliferation of wireless facilities.”

Critique of AT&T RF Expert J. Shad Rydalch’s Declaration

June 13, 2022

From J. Shad Rydalch’s 39 enumerated paragraphs.

Read key excerpts, below.

¶3 & 39:

AT&T’s Rydalch:

“My name is J. Shad Rydalch, Radio Access Network (“RAN”) Engineer in Idaho, Montana, and Wyoming for wireless service provider AT&T . . . I studied electronics for 2 years at Rick College in Rexburg, Idaho” [and] . . . have 28 years of professional wireless experience . . . I declare, under penalty of perjury pursuant to the law of the state of Idaho, that the foregoing is true and correct to the best of my knowledge, information, and recollection.”

¶5:

AT&T’s Rydalch:

Wireless carrier AT&T operates LTE and 5G NR technologies

  • 700 Megahertz (“MHz”)
  • 850 MHz
  • 1900 MHz
  • 2100 MHz
  • 2300 MHz
  • 3700 MHz

¶19:

AT&T’s Rydalch:

“AT&T [defined] a search ring in the vicinity of N. Star Road from W. Floating Feather Road to W. State Street, and the surrounding area. A search ring is a geographic location that has a center point and a defined area within which to search for a location for a new wireless facility.

AT&T’s Own Coverage Map from Aug 10, 2022

¶4:

AT&T’s Rydalch:

“I identified a significant gap in AT&T’s wireless coverage specifically a significant gap in AT&T’s in-vehicle and in-building wireless coverage and service-that exists in Star, Idaho . . . centered along N. Star Road from W. Floating Feather Road to W. State Street and the surrounding area.

Wire-America: The following are links to the relevant definition of “significant gap in coverage“, as affirmed by three key US Court of Appeals Rulings in the Ninth Circuit. The definition does NOT include “in-building” coverage, “in-vehicle” coverage or wireless information service coverage (data) as part of the definition. “Significant gap in coverage” only applies to “personal wireless service” = wireless telecommunications service = outdoor wireless phone calls — as clarified in Ninth Circuit case law and on AT&T’s own coverage map here for 12016 W. Feather Rd. Star, ID — https://www.att.com/maps/wireless-coverage.html

AT&T:This map displays approximate outdoor coverage. Actual coverage may vary. Coverage isn’t guaranteed and is subject to change without notice.”

  • 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.”

MetroPCS, Inc. v. City of San Francisco, 400 F.3d 715 (9th Cir. 2005)

“[MetroPCS alleged] that a decision by the San Francisco Board of Supervisors denying MetroPCS permission to construct a wireless telecommunications antenna atop a city parking garage violated several provisions of the Telecommunications Act of 1996(TCA). Specifically, MetroPCS alleged that the Board’s decision.”

“The basic facts of this case are not in dispute. MetroPCS is a provider of wireless telecommunications services . . .

“TCA is ‘not intended to limit or affect the Commission’s general authority over radio telecommunications, including the authority to regulate the construction, modification and operation of radio facilities,’ H.R. Conf. Rep. No. 104-458, at 209 (1996) . . .

“As explained in the House Conference Report, the chief purpose of the TCA is to “open[ ] all telecommunications markets to competition.”  H.R. Conf. Rep. No. 104-458, at 1 (1996) . . .

“We emphasize that MetroPCS’s concerns regarding zoning decisions based on “necessity” can be accommodated by the First Circuit’s version of the significant gap test . . .”

“Having considered both the avowed policy goals of the TCA and the practical implications of the various constructional options, we elect to follow the district court’s lead and formally adopt the First Circuit’s rule that a significant gap in service (and thus an effective prohibition of service) exists whenever a provider is prevented from filling a significant gap in its own service coverage . . .”

“The TCA’s statutory scheme ensures that the bandwidth usage and competitive market dynamics sought by Congress and the FCC will be realized, while at the same time allowing cities to prevent certain areas from being overburdened by a proliferation of wireless facilities. MetroPCS’s vigorous per se arguments against necessity-based zoning decisions misconstrue the delicate regulatory balance struck by the Act . . .”

“If a single siting denial does not create significant gaps in provider coverage and reflects no unreasonable discrimination among providers, market dynamics and FCC authority are not threatened”.

¶6-9:

AT&T’s Rydalch:

Wire-America: The content of ¶6-9 is Wireless industry propaganda from the Wireless trade association the Cellular Telecommunications Industry Association (“CTIA”) and much of it is provably wrong. This will be addressed in court, if needed, because Rydalch stated these items “under penalty of perjury pursuant to the law of the state of Idaho.” There is a real penalty for representing propaganda as verified truth in Declarations in quasi-judicial proceedings in Idaho.

[Alleged] Significant Gap in Reliable Wireless Coverage and Signal

¶10:

AT&T’s Rydalch:

“AT&T has a[n alleged] significant gap in the vicinity of the proposed site (the “Proposed Site”) in Ada County Application No. 202103048-CU (the “Application”), resulting in a lack of reliable in-vehicle and in-building wireless coverage.”

¶12-13:

AT&T’s Rydalch:

“AT&T uses Atoll wireless planning tools by Forsk for its propagation studies (see https://www.forsk.com/atoll-overview). This tool is a computer modeling environment is based on local terrain and ground clutter and propagation analysis formulas provided by Net Scout (see https://www.netscout.com/product/rf-modeling). Net Scout’s propagation formulas are calibrated using real world drive data collected in a local market.” By using industry standard computer models tuned with local drive test data. AT&T uses real world collected data to calculate both existing and proposed coverage and service levels. Atoll coverage maps predict the radio frequency coverage (“RF”) coverage and signal strengths

Wire-America: Ada County Commissioners need actuals, not predictions. Did AT&T measure any actual real-world local drive test data in Star, ID? Apparently not, because the applicant provided no such data in this testimony, but Rydalch did agree with data collected by Hank Allen which is substantial written evidence that proves that AT&T has sufficient signal strength for outdoor telecommunications service — which means that AT&T’s Rydalch agrees — in writing, under penalty of purjury — that the data show no siginficant gap in Wireless outdoor telecommunications service. Case closed. That is your key finding supported by substantial written evidence in your record.

¶16:

AT&T’s Rydalch:

“The following (“Image B”) is an Atoll-generated calculated coverage map depicting the coverage without the Proposed Site: . . . signal that is only strong enough for in-vehicle or open field use does not constitute the “provision of service.” AT&T and all other wireless providers must be able to provide a reliable wireless signal at an in-building signal level.

Wire-America: Must be able to provide a reliable wireless signal at an in-building signal level?That is nothing but a pipe dream of a business goal and not supported by the 1996 TCA, any US Court of Appeals Ninth Circuit rulings, any DC Circuit rulings or any US Supreme Court rulings. Simply put . . . no evidence (actual RF microwave radiation dBM measurements of AT&T frequencies provided) = no foundation for any claims of significant gap in coverage.

¶30-33:

AT&T’s Rydalch:

“I reviewed the “drive test data” (see . . . “Image F”) that Hank Allen . . . submitted to the Board of Ada County Commissioners a few days prior to the Board’s public hearing on William Lind’s appeal of the Planning and Zoning Commission’s approval of Application No 202103048-CU. . . . At the locations the data contained in the “drive test data” was collected, the data presented actually is accurate . . . the data which was submitted by opponent Hank Allen, agrees with AT&T’s propagation maps .”

Aug 4, 2022 Submissions:

In response to the Request to Reconsider a denial of the siting of a Wireless Telecommunications Facility (WTF) in Ada County, Idahoans for Safe Technology Submitted the Following:

Date: August 4, 2022

To: Ada County Commissioners

Comments RE: 202103048-A, CLARK WARDLE, LLP: A Reconsideration of the Board of Ada County Commissioner’s decision to approve the appeal 202103048 A, which overturned the Ada County Planning & Zoning Commission’s approval of application 202103048 -CU, a conditional use for a 100′ cell tower (aka Wireless Telecommunications Facility (WTF) for commercial use.

This Reconsideration should be denied.

  1. The applicant has failed to provide probative evidence that proves that a significant gap in telecommunications service exists in the target area served by the proposed WTF for any wireless carrier. Please note that ADA County commissioners are bound by the 2005 Ninth Circuit ruling’s definitions of a “significant gap” in telecommunications coverage and “least intrusive means” to close any proven significant gap. (See MetroPCS v San Francisco — https://caselaw.findlaw.com/us-9th-circuit/1406360.html ). The Ada County Commissioners must reject all applicant attempts to broaden the narrow definition of “significant gap” in telecommunications coverage to include “in-building” or “in vehicle” coverage, which do not appear in the ruling. Requiring of any wireless carrier the latest 12-months of anonymized call records for all calls attempted in the WTF’s target area is the probative evidence which would answer the relevant question: what are the percentage of dropped calls actually occurring. The applicant failed to provide any such evidence from any wireless carrier and has not proven that a significant gap in telecommunications coverage exists. The projections offered by the applicant are just that, projections. The projections are not based on any data proving that customers cannot make wireless phone calls outdoors via wireless telecommunications service, which are based on definitions from the 1996 Telecommunications Act, as listed in Appendices A, B and C of this letter.
  2. The applicant has had three months to submit probative evidence. The projections they offered are not based on actual, verifiable call record data and therefore do not meet the standard of probative evidence in Federal Court.
  3. Colored “Propagation” maps showing mere “projections”, are based on hidden/proprietary data and do not constitute probative evidence.
  4. The applicant was disingenuous in the previous hearing when they told the Commissioners that there were no other WTFs on which to collocate additional antennas. In fact, there is a 300’ tower a ½ mile away with space to accommodate AT&T antennas, which is sufficient to provide AT&T Telecommunications service.
  5. The applicant says they have a right to provide ‘IN HOME” coverage. There is nothing in the 1996 Telecommunications Act or the Ninth Circuit case law that backs up such an overreaching statement. Please note that in 2022,“Wi-fi calling” is a feature offered by every major wireless carrier. This feature takes advantage of a home’s hardwired internet connection to place cell phone calls on any wireless carrier’s network, whenever there is insufficient signal to place a call connecting directly to a WTF. The ability to make such a “Wi-F call” in an area served by a cable/coaxial or fiber optic wireline information service broadband provider also proves that there is no significant gap in telecommunications service.
  6. The applicant’s threat of a Federal Lawsuit and the County being forced to pay the applicants attorney’s fees are hollow. There are no damages or attorneys fees awarded in such cases. The sole remedy is an order to issue a permit IF the applicant has proved with probative evidence in the record that a significant gap in telecommunications coverage exists.
  7. All Wireless Telecommunications Facilities (WTFs) in Ada County can be deemed incomplete by ADA County planning staff until the FCC completes it court-mandated work for additional environmental review for Wireless Telecommunications Facilities (WTFs). Such mandates were issued in Aug 2019 in Keetoowah et al v FCC and in Aug 2021 in Environmental Health Trust and Children’s Health Defense et al v FCC. See the evidence from the case included by reference in this letter in Appendix D:

These maps are so worthless that the FCC did a study as I testified in the previous hearing:

When the telecommunications act was adopted back in 1996, Congress preserved to local governments, what is called the general authority to regulate the placement of wireless facilities, employing that power since 1996, local governments have adopted smart planning provisions, which is designed to regulate cell tower placement construction and modification in order to avoid adverse impacts against property owners, to minimize the number of towers needed to provide wireless telecommunications service in a given jurisdiction, and to make sure that a proposed installation is both necessary and reasonable.

The very first paragraph of the telecommunications act of 1996 is paragraph C seven a, which is entitled general authority.

“(a) National Wireless Telecommunications Siting Policy. — Section 332(c) (47 U.S.C. 332(c)) is amended by adding at the end the following new paragraph:

(7) Preservation of local zoning authority. —

(A) General authority. — Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.”

Under general authority, Congress deliberately preserved to the ADA County Commissioners the general authority to regulate the placement of wireless telecommunications facilities.

These are perfectly valid legal grounds for denying an application of the conditional use permit, both under Idaho’s unified land use ordinance and federal law. The key task is to base your decision to deny on substantial written evidence, which the Ada County Commissioners did in the last hearing.

One of the things local governments have been doing across the entire United States is to try to minimize the number of towers they need in order to provide personal wireless services. Anytime an applicant submits an application, the town can require the applicant to provide probative data proving that a significant gap in telecommunicatons service exists.

One common form of data is drive test data. To get drive test data, a consultant can take a recording device, attach it to a phone and drive through the area. That recording device gives you the actual signal strengths throughout the jurisdiction. That data would be actual probative data to determine the existence or absence of significant gaps in telecommunications service and the geographic locations of those gaps with GPS coordinates.

Per Ada County code, it is the obligation of the applicant to prove with substantial written probative evidence in the record if a significant gap in telecommunications service exists.

Even the FCC staff have rejected the Wireless Industry’s self-serving, unverifiable coverage maps and did their own testing.

· FCC staff completed 10,000 miles of drive testing.

  • FCC staff conducted 24,000 tests in nine states.
  • FCC staff found that the propagation maps that were submitted by companies like Verizon AT&T are inaccurate. In fact, the accuracy of those computer-generated propagation maps range from a low of 16.2% to a maximum of 64%.
  • Therefore, FCC staff advised that the FCC should no longer accept computer generated propagation maps without hard data.
  • And for the same reason, they found that local governments from New York to California are now saying, don’t give us these propagation maps. Give us the hard data.

The applicant has failed to give a propagation map backed up by verifiable, hard data. Data provided by an independent third party, specifying the type of equipment used and the areas that they drove to prove that a significant gap in telecommunications coverage exists.

That is a finding Ada County Commissioners can make to deny this Appeal Reconsideration.

If the applicant claims that the towers needed for a capacity deficiency, the most common form of data they provide is dropped call records. For example, If the applicant claims that AT&T has a capacity deficiency for telecommunications service, AT&T can use its computer and print out a list of all dropped calls for any specific location for any period in time. It’s a few keystrokes. None of that data has been submitted by the applicant.

Simply put, the applicant has failed to submit sufficient probative data to determine if this this WTF at this location or height is necessary at all.

Please deny this reconsideration.


Appendix A: 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.”

Appendix B: 1996-TCA Conference Report

Source: https://www.congress.gov/104/crpt/hrpt458/CRPT-104hrpt458.pdf

“When utilizing the term ‘‘functionally equivalent services’’ the conferees are referring only to personal wireless services as defined in this section that directly compete against one another. The intent of the conferees is to ensure that a State or local government does not in making a decision regarding the placement, construction and modification of facilities of personal wireless services described in this section unreasonably favor one competitor over another. The conferees also intend that the phrase ‘‘unreasonably discriminate among providers of functionally equivalent services’’ will provide localities with the flexibility to treat facilities that create different visual, aesthetic, or safety concerns differently to the extent permitted under generally applicable zoning requirements even if those facilities provide functionally equivalent services. For example, the conferees do not intend that if a State or local government grants a permit in a commercial district, it must also grant a permit for a competitor’s 50-foot tower in a residential district.”


Appendix C: Title 47 US Code Section 332(c)(7)

Source: https://wireamerica.org/compare/

(C) Definitions. — For purposes of this paragraph —

  • (i) the term ‘personal wireless services’ means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services;
  • (ii) the term ‘personal wireless service facilities’ means facilities for the provision of personal wireless services; and
  • (iii) the term ‘unlicensed wireless service’ means the offering of telecommunications services using duly authorized devices which do not require individual licenses, but does not mean the provision of direct-to-home satellite services (as defined in section 303(v)).”

Appendix D: Aug 13, 2021, Ruling US Courts of Appeals, DC in Case 20-1025, Environmental Health Trust, et al. v FCC

On Aug 13, 2021, the US Courts of Appeals, DC Circuit ruled in Case 20-1025, Environmental Health Trust, et al. v FCC — a lawsuit that challenged the legality of the FCC’s attempted de facto rule-making, a sneaky maneuver that tried to extend its current RF microwave radiation exposure guidelines to frequencies above 6,000 MHz, without any reasoned decision-making. The judges caught the FCC and remanded FCC Order 19-126 back to the FCC, invalidating the Order.

The DC Circuit judges ruled the following in Case 20-1025:

“. . . we grant the petitions in part and remand to the Commission to provide a reasoned explanation for its determination that its guidelines adequately protect against harmful effects of exposure to radio-frequency [microwave] radiation. It must, in particular,

  • (i) provide a reasoned explanation for its decision to retain its testing procedures for determining whether cell phones and other portable electronic devices comply with its guidelines,
  • (ii) address the impacts of RF radiation on children, the health implications of long-term exposure to RF radiation, the ubiquity of wireless devices, and other technological developments that have occurred since the Commission last updated its guidelines, and
  • (iii) address the impacts of RF radiation on the environment.”

Wireless radio frequency microwave radiation is bioactive and is currently being insufficiently regulated. Therefore, each state or locality can regulate the maximum power output of microwave radiation from wireless infrastructure antennas that reaches any areas that are accessible to human beings and other living organisms, consistent with the 11,000+ pages of peer-reviewed, scientific evidence that Environmental Health Trust and Children’s Health Defense and others plaintiffs placed in the FCC’s public record: Vol-1, Vol-2, Vol-3, Vol-4, Vol-5, Vol-6, Vol-7 Vol-8, Vol-9, Vol-10, Vol-11, Vol-12, Vol-13, Vol-14, Vol-15, Vol-16, Vol-17, Vol-18, Vol-19, Vol-20, Vol-21, Vol-22, Vol-23, Vol-24, Vol-25, Vol-26 and Vol-27.

This page is one of three legs of the stool that establishes local control over the operations of Wireless Telecommunications Facilities (WTFs); the other two are the US House/Senate Conference Report for the 1996 Telecommunications Act (“1996-Act”) and the stated purpose of the 1996-Act: to promote the safety of life and property.



August 4, 2022

To: Ada County Commissioners

Comments RE: 202103048-A, CLARK WARDLE, LLP: A Reconsideration of the Board of Ada County Commissioner’s decision to approve the appeal 202103048 A, which overturned the Ada County Planning & Zoning Commission’s approval of application 202103048 -CU, a conditional use for a 100′ cell tower for commercial use.

This Reconsideration should be denied for the following reasons.

  1. The applicants “expert” Jason Evans states that the potential locations considered by the applicant for Wireless Telecommunications Facilities (WTFs) missed a 300’ existing cell tower that was located 1.6 miles in the direction of the claimed significant gap in telecommunications coverage. See Exhibit 1 of Jason’s Declaration. This tower is in clear view from the proposed site and would be the least intrusive means to fill any prove significant gap in telecommunications coverage. Jason declared under the penalty of perjury that his “table of potential alternative sites” was correct. The County Commissioners should pursue perjury charges against Mr Jason Evans and dismiss him as a credible source of information.
  2. I reached out to the owner of the 300’ “SBA” tower and they would gladly rent space to AT&T to fill it’s alleged gap in telecommunications coverage: Tower Location: 24082 Blessinger Rd., Star ID 83669, Owner: SBA Contact: Joe Rozanc Phone: 702-581-2663 Email: JRozanc@sbasite.com. Joe also sent me a spread sheet with all of SBA’s tower locations in Idaho (See Attached). This should be kept on file at the County for future use.
  3. The applicants “expert” in Radio Access Network Engineer J. Shad Rydalch states that there is a significant Gap In “Reliable In-vehical and in-building wireless coverage to provide a positive experiences with data connections (e.g. internet information service) the speed must be as fast as the technology allows”. Mr Rydalch is clearly talking about Title 1 “Information services” that are do not qualify for any preemption under the 1996 Telecommunications Act and since 2019 are not regulated by the FCC at all. He also declares under the penalty of perjury that this is true. Will one of the Commissioners please ask Mr Rydaich under the penalty of perjury the following questions:
    • a. Does AT&T have a significant Gap in Title 2 “telecommunications services” or is the said gap in coverage Title 1 “Information Services” that is exempt from common carrier status and the 1996 TCA?
    • b. Has Mr Rydalch ever stepped foot on the site at W. Floating Feather Rd. and taken any actual dBm signal strength readings for AT&T specific frequencies from the site? If so, please provide your dBm signal strength reading data along with any AT&T completed/dropped call records for the targeted area of coverage.
    • c. Please explain why the proposed 100’ cell tower on the Valley floor will travel over a 1 mile to fill your alleged gap in-house coverage (Image C) and a 300’ existing tower on top of the ridge will only travel a 1/4 of a mile to fill your alleged in-house gap in coverage (Image D)? Please provide your input date for both maps so we can have a neutral third-party RF engineer verify the work.
  4. How is it possible for T-mobile and Verizon to provide coverage in this area and AT&T can’t without a new tower? A expert RF Engineer should be able to explain this odd circumstance.
  5. Mr Rydalch’s computer-generated coverage map that depicts coverage without the proposed site “Image B” clearly shows that there is Good Outdoor and In-vehicle coverage, without installing a single new antennas (areas shaded in blue and green) . According to his map there is NOT a “significant gap in Title 2 “telecommunications services” and the county should deny this CUP application because it’s simply not needed.
  6. I think it is clear that Mr Rydalch is getting paid by the applicant to generate computer models without any substantive data to back up his claims. His testimony should also be disregarded because it lacks probative evidence proving that AT&T has a significant gap in telecommunications coverage anywhere in the target area.
  7. The Commissioners also have the option to postpone making a ruling on this and all future cell tower CUP applications until after the FCC provides a reasoned explanation for its determination that its guidelines adequately protect against harmful effects of exposure to radio-frequency radiatio, as ruled by the US Court of Appeals for the DC Circuit 8/13/21 Decision – Case No. 20-1025 CHD/EHT et al. v FCC.

I urge the county to follow Dalton Gardens, ID and update their wireless code to put and end to this time-consuming process for everyone.


Appendix A: FCC Order 18-133 is
a Presumptive Order That is Not Self-Enforcing

Feb 10, 2020 FCC Attorney Statements re: FCC Order 18-133 in US Courts of Appeals, Ninth Circuit

“The Order doesn’t purport to prevent localities from addressing reasonable aesthetic requirements. In fact we say in the small cell order that aesthetic requirements are permitted . . . a locality could say if a 50-foot pole would be out of character with the surrounding neighborhood, you can’t put up a 50 foot pole.”

Scott Noveck, FCC Attorney on Feb 10, 2020 → https://youtu.be/zoZHNSOibmo?t=37m47s

“Localities are still free to craft their own substantive aesthetic requirements

“These Orders [FCC 18-111 and FCC 18-133] are not self-enforcing. They contemplate 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.”

“Anyone of these specific factual disputes that arise, this Order is designed to provide some clarity and narrow the scope of disputes . . . when there are remaining disputes, nothing about this Order is self-enforcing.”

Definitions Relevant to FCC Order 18-133

  • self-enforcing :: containing in itself the authority or means that provide for its enforcement
  • presumption :: a legal inference as to the existence or truth of a fact not certainly known that is drawn from the known or proved existence of some other fact
  • preference :: the act, fact, or principle of giving advantages to some over others
  • guidance :: the act of direcing, supervissing, or influen comg usually to a particular end

From FCC Order 18-133: the Streamline Deployment of so-called “small” Wireless Telecommunications Facilities (sWTFs) Order

The only mention of “in-building” use of wireless services in FCC Order 18-133 is in ¶ 40:

¶ 40. As we explained above,

  • FCC: We reject alternative readings of the effective prohibition language that have been adopted by some courts and used to defend local requirements that have the effect of prohibiting densification of networks. Decisions that have applied solely a “coverage gap”- based approach under Section 332(c)(7)(B)(i)(II) reflect both an unduly narrow reading of the statute and an outdated view of the marketplace.94

Wire-America: The preceding bullet point is mererly a presumption by the FCC; it does not have the force of law. As already ruled in the US Courts of Appeals, 2nd Circuit: “it is not up to the FCC to construe the TCA to say something it does not say, nor up to the Court to find broadband communication encompassed by the law.”

Note: TCA = 1996 Telecommunications Act

Clear Wireless LLC v. Building Department of the Village of Lynbrook et al Doc. 41

Judge Pratt quotes a 2011 ruling in Arcadia Towers when he writes

“‘Under such a circumstance it is not up to the FCC to construe the TCA to say something it does not say, nor up to the Court to find broadband communication encompassed by the law'”

II. DISCUSSION

“On October 4, 2010, the Board denied Clearwire’s application for a special use permit. (See Resolution & Decision, Ex. L.) Among the reasons for denying the application was the Board’s belief that, because 4G service is an “advanced Internet product”, the application was not entitled to the higher level of review afforded to telecommunications services under the Telecommunications Act of 1996. The Board based this conclusion on the D.C. Circuit’s decision in Comcast Corporation v. Federal Communications Commission, 600 F.3d 642 (D.C. Cir. 2010). Thus, the Board only analyzed Clearwire’s application under the criteria set forth in the Village Code.”

“The Court agrees with the observation by the court in Arcadia Towers that “the law has not kept up with the changes in technology”. 2011 WL 2490047, at 2. “Under such a circumstance it is not up to the FCC to construe the TCA to say something it does not say, nor up to the Court to find broadband communication encompassed by the law*.” Id. Accordingly, the Court denies Clearwire’s motion for summary judgment and grants the Village Defendants’ cross-motion for summary judgment and dismisses Clearwire’s first cause of action for declaratory and injunctive relief based on violations of the TCA.”

III. CONCLUSION

For the foregoing reasons, it is hereby

ORDERED, that Clearwire’s motion for summary judgment on its federal and state causes of action is DENIED, and it is further

ORDERED, that the Village Defendants’ cross-motion for summary judgment to dismiss the federal cause of action is GRANTED, and it is further

ORDERED, that the Village Defendants’ cross-motion for summary judgment to dismiss the state cause of action is GRANTED and the state cause of action is dismissed without prejudice, and it is further

ORDERED, that the Clerk of the Court is directed to close this case

SO ORDERED.

Dated: Central Islip, New York
March 8, 2012

ARTHUR D. SPATT
United States District Judge

  • FCC: Those cases, including some that formed the foundation for “coverage gap”-based analytical approaches, appear to view wireless service as if it were a single, monolithic offering provided only via traditional wireless towers.95
  • FCC: By contrast, the current wireless marketplace is characterized by a wide variety of offerings with differing service characteristics and deployment strategies.96
  • FCC: As Crown Castle explains, coverage gap-based approaches are “simply incompatible with a world where the vast majority of new wireless builds are going to be designed to add network capacity and take advantage of new technologies, rather than plug gaps in network coverage.”97
  • FCC: Moreover, a critical feature of these new wireless builds is to accommodate increased in-building use of wireless services, necessitating deployment of small cells in order to ensure quality service to wireless callers within such buildings.98

Wire-America: None of these five FCC statements in FCC order 18-133 (and none of the FCC footnotes, listed below) were ruled on in Case No. 18-72689 City of Portland et al. v FCC. (August 2020).

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 Ninth Circuit judges ruled in Case No. 18-72689:

“We therefore hold that the FCC’s requirement in the Small Cell Order that aesthetic regulations be “no more burdensome” than regulations applied to other infrastructure deployment is contrary to the controlling statutory provision. See 47 U.S.C. § 332(c)(7)(B)(i)(II).

We also hold that the FCC’s requirement that all local aesthetic regulations be “objective” is not adequately explained and is therefore arbitrary and capricious.

We therefore:

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

94 FCC Footnote: Smart Communities seeks clarification of whether this Declaratory Ruling is meant to say that the “coverage gap” standard followed by a number of courts should include consideration of capacity as well as coverage issues. Letter from Gerard Lavery Lederer, Counsel, Smart Communities and Special Districts Coalition, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, Att. at 17 (Sept. 19, 2018) (Smart Communities Sept. 19 Ex Parte Letter). We are not holding that prior “coverage gap” analyses are consistent with the standards we articulate here as long as they also take into account “capacity gaps”; rather, we are articulating here the effective prohibition standard that should apply while, at the same time, noting one way in which prior approaches erred by requiring coverage gaps. Accordingly, we reject both the version of the “coverage gap” test followed by the First, Fourth, and Seventh Circuits (requiring applicants to show “not just that this application has been rejected but that further reasonable efforts to find another solution are so likely to be fruitless that it is a waste of time even to try”) and the version endorsed by the Second, Third, and Ninth Circuits (requiring applicants to show that the proposed facilities are the “least intrusive means” for filling a coverage gap) See supra n. 75. We also note that some courts have expressed concern about alternative readings of the statute that would lead to extreme outcomes—either always requiring a grant under some interpretations, or never preventing a denial under other interpretations. See, e.g., Willoth, 176 F.3d at 639-41; APT, 196 F.3d at 478-79; Town of Amherst v. Omnipoint Communications Enterprises, Inc., 173 F.3d 9, 14 (1st Cir. 1999); AT&T Wireless PCS v. City Council of Virginia Beach, 155 F.3d 423, 428 (4th Cir. 1998) (City Council of Virginia Beach); see also, e.g., Greenling Comments at 2; City and County of San Francisco Reply

95 FCC Footnote: See, e.g., Willoth, 176 F.3d at 641-44; 360 Degrees Commc’ns Co. v.Board of Supervisors of Albemarle County, 211 F.3d 79, 86-88 & n.1 (4th Cir. 2000) (Albemarle County); see also, e.g., ExteNet Comments at 29; T-Mobile Comments at 42; Verizon Comments at 18; WIA Comments at 38-40. Even some cases that implicitly recognize the limitations of a gap-based test fail to account for those limitations in practice when applying Section 332(c)(7)(B)(i)(II). See, e.g., Second Generation Properties v. Town of Pelham, 313 F.3d 620, 633 n.14 (4th Cir. 1) (discussing scenarios where a carrier has coverage but insufficient capacity to adequately handle the volume of calls or where new technology emerges and a carrier would like to use it in areas that already have coverage using prior-generation technology). Courts that have sought to identify limited set of characteristics of personal wireless services covered by the Act essentially allow actual or effective prohibition of many personal wireless services that providers wish to offer with additional or more advanced characteristics. See, e.g., Willoth, 176 F.3d at 641-43 (drawing upon certain statutory definitions); Cellular Tel. Co. v. Zoning Bd. of Adjustment of the Borough of Ho-Ho- Kus, 197 F.3d 64, 70 (3d Cir. 1999) (Borough of Ho-Ho-Kus) (concluding that it should be up to state or local authorities to assess and weigh the benefits of differing service qualities); Albemarle County, 211 F.3d at 87 (citing 47 CFR §§ 22.99, 22.911(b) as noting the possibility of some ‘dead spots’); cf. USCOC of Greater Iowa, Inc. v. Zoning Bd. of Adjustment of the City of Des Moines, 465 F.3d 817 (8th Cir. 2006) (describing as a “dubious proposition” the argument that a denial of a request to construct a tower resulting in “less than optimal” service quality could be an effective prohibition). An outcome that allows the actual or effective prohibition of some covered services is contrary to the Act. Section 253(a) applies to any state or local legal requirement that prohibits or has the effect of prohibiting any entity from providing “any” interstate or intrastate telecommunications service, 47 U.S.C. § 253(a). Similarly, Section 332(c)(7)(B)(i)(II) categorically precludes state or local regulation of the placement, construction, or modification of personal wireless service facilities that prohibits or has the effect of prohibiting the provision of personal wireless “services.” 47 U.S.C. § 332(c)(7)(B)(i)(II). We find the most natural interpretation of these sections is that any service that meets the definition of “telecommunications service” or “personal wireless service” is encompassed by the language of each provision, rather than only some subset of such services or service generally. The notion that such state or local regulation permissibly could prohibit some personal wireless services, so long as others are available, is at odds with that interpretation.

Wire-America: one cannot make up definitions to suit their business goals. One must rely on the definitions already in the law:

Title 47 U. S. Code §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

Title 47 U. S. Code §332(c)(7)(C)

(i) the term ‘personal wireless services’ means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services;

1996 TCA Conference Report

When utilizing the term ‘”functionally equivalent services” the conferees are referring only to personal wireless services as defined in this section that directly compete against one another.
In addition, as we explain above, a contrary approach would fail to advance important statutory goals as well as the interpretation we adopt. Further, the approach reflected in these court decisions could involve state or local authorities “inquir[ing] into and regulat[ing] the services offered—an inquiry for which they are ill-qualified to pursue and which could only delay infrastructure deployment.” Crown Castle June 7, 2018 Ex Parte Letter at 14. Instead, our effective prohibition analysis focuses on the service the provider wishes to provide, incorporating the capabilities and performance characteristics it wishes to employ, including facilities deployment to provide existing services more robustly, or at a better level of quality, all to offer a more robust and competitive wireless service for the benefit of the public.

Wire-America: Nice try, but no dice. No US Court of Appeals Circuit judge has upheld this “wish-fulfillment scheme” which would violate the cooperative federalism as defined in the 2005 US Supreme Court ruling Palos Verdes v. Abrams. Such a “wish-fulfillment scheme” is merely a presumption that must face case-by-case adjudication.

96 FCC Footnote: See generally, e.g., Twentieth Wireless Competition Report, 32 FCC Rcd at 8968; see also, e.g., T-Mobile Comments at 42-43; AT&T Reply at 4-5; CTIA Reply at 13-14; WIA Reply at 23-24; Crown Castle June 7, 2018 Ex Parte Letter at 15. We do not suggest that viewing wireless service as if it were a single, monolithic offering provided only via traditional wireless towers would have reflected an accurate understanding of the marketplace in the past, even if it might have been somewhat more understandable that courts held such a simplified view at that time. Rather, the current marketplace conditions highlight even more starkly the shortcomings of coverage gap- based approaches, which do not account for other characteristics and deployment strategies. See, e.g., Twentieth Wireless Competition Report, 32 FCC Rcd at 8974-75, para. 12 (observing that “[p]roviders of mobile wireless services typically offer an array of mobile voice and data services,” including “interconnected mobile voice services”); id. at 8997-97, paras. 42-43 (discussing various types of wireless infrastructure deployment to, among other things, “improve spectrum efficiency for 4G and future 5G services,” “to fill local coverage gaps, to densify networks and to increase local capacity”)

97 FCC Footnote: Crown Castle June 7, 2018 Ex Parte Letter at 15; see also id. at 13 (“Densification of networks will be key for augmenting the capacity of existing networks and laying the groundwork for the deployment of 5G.”); id. at 15-16 (“When trying to maximize spectrum re-use and boost capacity, moving facilities by just a few hundred feet can mean the difference between excellent service and poor service. The FCC’s rules, therefore, must account for the effect siting decisions would have on every level of service, including increasing capacity and adding new spectrum bands. Practices and decisions that prevent carriers from doing either materially prohibit the provision of telecommunications service and thus should be considered impermissible under Section 332.”). Contrary approaches appear to occur in part when courts’ policy balancing places more importance on broadly preserving state and local authority than is justified. See, e.g., APT, 196 F.3d at 479; Albemarle County, 211 F.3d at 86; City Council of Virginia Beach, 155 F.3d at 429; National Tower, LLC v. Plainville Zoning Bd. of Appeals, 297 F.3d 14 (1st Cir. 2002); see also, e.g., League of Arizona Cities et al. Joint Comments at 45; Smart Communities Reply at 1. As explained above, our interpretation that “telecommunications services” in Section 253(a) and “personal wireless services” in Section 332(c)(7)(B)(i)(II) are focused on the covered services that providers seek to provide —including the relevant service characteristics they seek to incorporate—not only is consistent with the text of those provisions but better reflects the broader policy goals of the Communications Act and the 1996 Act.

98 FCC Footnote: See WIA Comments at 39; T-Mobile Comments at 43-44