Adapted from June 6, 2021 Memo from W. Scott McCollough, Esq.
McCOLLOUGH LAW FIRM PC
Internet | Communications | Utilities | Regulation
2290 Gatlin Creek Rd.
Dripping Springs, Texas 78620
From: W. Scott McCollough
To: Malibu Planning Commission
cc: Planning Commission Staff and City Attorney
Re: Planning Commission June 7, 2021 Meeting, Items 5.H and 5.1
- (5.H) Wireless Communications Facility No. 20-010, Coastal Development Permit No. 20-028, Variance No. 20-017, and Site Plan Review No. 20-041 — An application for an upgraded wireless communications facility on a new replacement wooden utility pole in the public right-of-way; Location: 31557.5 Pacific Coast Highway
- (5.1) Wireless Communications Facility No. 20-011, Coastal Development Permit No. 20-029, variance No. 20-018, and Site Plan Review No. 20-040 – An application for an upgraded wireless communications facility on a new replacement wooden utility pole in the public right-of-way; Location: 6213.5 Kanan Dume Road
This firm represents Lonnie Gordon, a Malibu resident (Protestant). Protestant will appear in person and through her representatives at the June 7 hearing to oppose both applications and request that the Commission not approve them. Protestant requests that the undersigned and our two experts be given equivalent and equal participatory time and status to that afforded to the applicant’s representatives and not a mere 3 minutes per person during public comment.
Protestant provides the discussion below and the information/evidence in Attachments I and 2. Please place these materials in the record.
The Planning Commission should dismiss these applications on a procedural basis. If it does address the merits, it should deny all requested permits. Verizon has failed to carry its burden of proving entitlement, eligibility for the expressly and implicitly requested waivers/exceptions, and, most important, that the proposed design is both safe and code compliant.
1. The Planning Commission lacks jurisdiction over these applications. Malibu Municipal Code Chapter 12 (adopted through Ordinance 477) implemented a procedure using administrative processing by the Planning Director and appeal to a hearing officer. There is no Planning Commission reviewing authority or appellate role for municipal permits in public right of way. Under the Local Implementation Plan (LIP) a separate Coastal Development Permit is supposed to be secured through a similarly administrative Planning Manager overseen Site Review Plan process, and the Planning Commission has only appellate, not original jurisdiction. There has been no decision and no appeal so the Coastal Development Permit application is also not properly before the Planning Commission. The only action that can be taken by the Planning Commission is dismissal or remittance back to the Planning Director/Manager for initial disposition, with any subsequent appeals taking their legislatively-ordained separate tracks.
This outcome may lead to problems, but it is mandated by the clear terms of the relevant governing laws in the MMC and LIP. Notably, Staff insisted on administrative processing and recourse to a hearing examiner under MMC Chapter 12 and convinced the City Council to adopt that process over the objection of many residents who opposed that process. Staff did not realize, or knew and did not disclose, that their approach requires different processes for each permit type. Ultimately, this is the procedure Staff insisted upon and the City Council adopted. The Planning Commission cannot circumvent the process by which it is bound despite Staff’s improper placement of these applications before the Planning Commission in contravention of governing law.
2. What substantive standards and requirements apply? The Staff Agenda Report reveals that Staff used a hodgepodge, ad hoc approach to the substantive standards and requirements applicable to these permits. Although it is not entirely clear, it appears Staff mostly applied or referenced a standard or requirement from MMC Chapter 17.46 even though MMC Chapter 12 replaced Chapter 17.46 for ROW municipal permits in December 2020 and it has different rules. The Agenda Report never cites to MMC Chapter 12 or the associated Resolution 20-65, but Staff nonetheless imposed some of the MMC Chapter 12 permit conditions without so disclosing or explaining why. Staff applied the insurance coverage requirements in Resolution 20-65 Section 10.A.24, for example.
Protestant agrees that the LIP standards and requirements apply to the Coastal Development Permit. But MMC Chapter 12 standards and requirements apply to the separate municipal permit, except for those related to aesthetics. As a single example, the higher MMC Section 17.46.060.D “clear and convincing evidence” standard for waivers/exceptions/variances, rather than the lower “technical evidence acceptable to the planning manager” standard in MMC Section 17.46. N and O must be applied to Verizon’s expressly and implicitly requested waivers/exceptions/variances in the context of the municipal permit. All of the conditions in Resolution 20-65, not just those Staff wants to use, must be imposed as part of the municipal permit. The Planning Commission cannot use Staff’s arbitrary approach. It must follow the municipal code process and assiduously apply the prescribed substance for the municipal permits Verizon seeks. More important, and even if it does not apply new MMC Chapter 12, it must be absolutely clear what “law” and “substance” and “standard” it is applying and state the justification for selecting those standards.
3. Verizon has not proven the Wireless Facilities will be used to provide any “personal wireless service.” Assuming the Planning Commission considers the merits of the applications, under both federal law and the MMC (whether Chapter 12 or Section 17.46) a provider is eligible for municipal permits only if the proposed facility will, in fact, be used to support some personal wireless service. There is nothing in the record proving that Verizon will in fact use these two facilities to support any personal wireless service. It has therefore failed its burden of proving entitlement and the municipal permits must be denied. Deny the proposed and implicit waivers/exceptions/variances. Verizon will in fact use these two facilities to support a personal wireless service. It has therefore failed its burden of proving entitlement and the municipal permits must be denied.
4. Deny the proposed and implicit waivers/exceptions/variances. Verizon expressly sought a waiver/exception to the formerly-applicable MMC Section 1 7.46.100.B.9, the MMC Chapter 12 current application form Section 6.B and the LIP Section 126.96.36.199 “coverage map” requirements. The Planning Commission must deny this waiver. Verizon has not presented clear and convincing evidence that the waiver is appropriate. The coverage map is necessary. The Planning Commission cannot make the required findings related to pole replacement location or pole height without the information a coverage map would yield.
Verizon also implicitly sought other waivers from important requirements when it refused to supply other required information. For example, Verizon did not advise whether the proposed projects are within 600 feet of any other wireless facility. Staff failed to catch these omissions. The Planning Commission must reject these implicit waivers, and deny the applications because they do not satisfy at least two applicable substantive requirements.
5. Verizon has not proven code compliance or safe electrical design. Staff completely failed to adequately review the proposed electrical design and ensure all fire hazards have been mitigated. This is the most crucial issue the Planning Commission has before it now, and will need to contend with in all other future applications. See Attachment 2 (Susan Foster submission). The entire city relies on the permit reviewing authority to ensure that any proposed wireless facility has been rigorously designed to mitigate all known fire hazards, and will meet all applicable code requirements. Failure in this regard will threaten the life and property of every Malibu resident. If the Commission reaches the merits it is up to you to prevent another devastating fire in Malibu caused by utility/telecom infrastructure.
Malibu General Plan Policy 1.1.2 states that the “City shall minimize the risk of loss from fire.” All potentially applicable laws require that express findings that the project design is both safe and fully compliant with all applicable codes. There is nothing in the record, however, to support a finding of code compliance other than bald conclusions without any analysis or support. There is no reliable evidence the Planning Commission can use to enter the required code compliance findings. Even worse, Verizon’s presentation on electrical safety design is woefully deficient and contains a potential error related to power supply. No licensed engineer was willing to opine that the design is safe. Indeed, the only Verizon engineer that did supply information expressly disclaimed any opinion on electrical and structural safety.
Protestant, on the other hand, is providing an opinion (Attachment I), sealed by licensed engineer Tony Simmons, that affirmatively states that “the unsigned, unsealed engineering documents submitted on behalf of Verizon do not demonstrate with engineering certainty that the five hazards associated with using electricity have been fully evaluated and mitigated for these two installations.” He affirmatively states that
“the record before the Planning Commissions of the Resolutions does not support adoption of the proposed findings in Section 3 of the draft Resolutions related to code and general safety and welfare, including but not limited to A. 1, B.2, B.4, B.9, C.4, C.5 and E. 1-4 in Resolutions 21-48 and 21-49.”
Verizon has failed to prove safe design and code compliance. The Planning Commission cannot enter the required findings if it abides by General Plan Policy 1.1.2 and endeavors to “minimize the risk of fire.” For this reason alone all of the permits must be denied.
As stated in the above Summary and further discussed below, the Commission must dismiss these applications for lack of jurisdiction. If it reaches the merits, however, it must deny all of these permits.
A. Planning Commission lacks jurisdiction over these applications
Verizon is required to obtain two separate permits for each facility. First, Verizon must obtain a municipal permit under MMC Chapter 12.02. Second, and separately, Verizon must secure a Coastal Development Permit. The City is handling the Coastal Development Permit because it has assumed delegated authority from the Coastal Commission. To perform that function the City Council enacted Section 3.16 in the Local Implementation Plan. But there must still be 2 permits for each facility.1 Each permit has its own identity, and each has specific procedures and substantive requirements. The reviewing authority must abide by each, and apply those procedures and substantive requirements to each.
The process and substance was largely the same for both when MMC Chapter 17.46 applied to ROW-related applications. So the reviewing authority could hear both permits on a “concurrent” basis. See LIP Section 13.3.C. It was possible to use the same processes and make the same findings, then separately approve (or deny) each permit. But that all changed in December when the Council adopted MMC Chapter 12 on an urgency and then permanent basis. The process, substance and required findings for a Chapter 12 permit are all now different from those under the LIP. And, most important, the reviewing authority is different. When the Council was debating Ordinance 477 Staff insisted that the process should be administrative in nature. Although many Malibu residents stated a clear desire for Planning Commission review, staff opposed that and convinced Council that administrative processing was the better route. They convinced the City Council, over the citizens’ objection. MMC Chapter 12.02, enacted through Ordinance 477, now clearly and expressly states that the Planning Director is the Reviewing Authority and the one that “determine(s) whether to approve, approve subject to conditions, or deny and application.” MMC 12.02.040.A.8. The Planning Director’s determination is then subject to appeal to a Hearing Officer. MMC Section 12.02.040.B.4-.6. There is no role for Planning Commission for Chapter 12 ROW permits. Simply put, the Planning Commission now lacks jurisdiction over applications for Wireless ROW Permits. The Planning Commission must dismiss the application under Chapter 12 for lack of jurisdiction. The process envisioned by Chapter 12 must be applied.
The Planning Commission also does not have jurisdiction under the LIP. Current LIP Section 3.16.2 contemplates a “site plan review” “pursuant to Section 13.27 of the LCP” for projects in the right of way. Section 13.27 in turn names the “Planning Manager” as the reviewing authority for wireless facilities. LIP Section 13.27.1(7). The Planning Commission does not make the initial decision. Instead, it has only appellate authority. An “aggrieved person”2 must appeal the Planning Manager’s decision to the Planning Commission under LIP Section 12.20.1. There has been no Planning Manager decision and no aggrieved person has appealed. Jurisdiction has therefore not attached in the Planning Commission.
The Planning Commission lacks jurisdiction. The proper processes under MMC Chapter 12 and the LIP must be followed. The Planning Director must make a decision under MMC Chapter 12, and a separate decision under LIP 13.27. Then, if anyone is dissatisfied they must take two different appellate routes:
- the Chapter 12 permit goes to the hearing examiner and
- the LIP comes to the Planning Commission.
This is not an ideal outcome, but it is the clear consequence of the Staff’s insistence before the City Council that this Commission should not be involved in Chapter 12 ROW applications. They prevailed over the community’s objection and must live with the problem they created. Staff cannot now vest jurisdiction in the Planning Commission. Only the City Council can do that and they did not.
B. What substantive standards and requirements apply?
Assuming (without conceding) that the Planning Commission has jurisdiction, the Staff Agenda Report must be rejected and both projects must be denied. Staff may contend that the LIP takes precedence over the MMC so the entire process and substance collapses into a purely LIP-based review for both permits. That is incorrect. Chapter 12 applies on its face. Each permit stands on its own and the processes and standards for each must be applied to each, separately.
An “MMC Chapter 12” permit does not suffice alone since Verizon must also obtain a Coastal Development Permit. If either permit imposes hiqher duties and obligations then Verizon must abide by them. The Coastal process and substance does not eliminate or make irrelevant the Chapter 12 process or substance. Both apply, and both must be followed.
Staff, however, did not consistently follow or apply the proper legal and substantive standards under either Chapter 12 or LIP Section 3.16.1. Indeed, it is not clear what standards Staff contends do apply for applications deemed complete before the City Council adopted Malibu Municipal Code (MMC) Chapter 12.02 and Resolution 20-65 in December, 2020. They did not consistently apply the standards in MMC Chapter 12.02 and Resolution 20-65 or former MMC Chapter 17.46. Nor did Staff consistently apply LIP Chapter 3.16. They seem to have operated on an ad hoc basis.
If these applications are somehow properly before this Commission it has a separate obligation to exercise independent judgement since it will be the one that is formally acting on the applications and entering all required findings. See MMC Sections 2.36.080, 17.04.080. Before it takes any action the Planning Commission must expressly state just what standards, rules and procedures it is applying to these applications. And then follow them. For each of the two permits involved in Agenda Item H and each of the two permits in Agenda Item I.
While there are several aspects to the “process” and “standards” issue in the context of these applications, two predominate. The first issue, of course, is whether the old ordinance provisions in MMC Chapter 17.46 or new Chapter 12.02 (and Resolution 20-65) apply. The second is the burden of proof Verizon must carry to obtain approval. Setting aside the jurisdictional issue, Protestant contends that the commands in Chapter 12.02 and Resolution 20-65 apply for the most part and are only preempted with regard to “aesthetics” standards.
Ordinance 484 (adopting new Chapter 12.02) Section 6 provides:
SECTION 6. Pending Applications. All applications for wireless facilities on land other than public ROW or for modifications to existing wireless facilities in the public rights-of-way which were not subject to final action by City prior to the effective date of this Ordinance shall be subject to and comply with all provisions of this Chapter, and any design and placement standards adopted by the City Council by resolution, to the fullest extent permitted by applicable law.
Although they never disclosed this issue while the City Council was considering Ordinance 477U and 477 and the “Pending Applications” provision, Staff now asserts that the new Ordinance and Resolution 20-65 cannot be applied to applications not subject to final action, but for which the Planning Director deemed the application complete before December 2020. They do so because of certain language in the FCC’s 2018 Small Cell Order. They are incorrect.
Staff bases its position on the “advance publication” requirement in Small Cell Order ¶¶ 86,88 and 913 Those passages are absolutely clear, however, that only aesthetics (and minimum spacing requirements imposed for aesthetics reasons, but not when imposed for other reasons) have to be published “in advance” of the time an application is deemed complete.
FCC 18-133, ¶86. Given these differing perspectives and the significant impact of aesthetic requirements on the ability to deploy infrastructure and provide service, we provide guidance on whether and in what circumstances aesthetic requirements violate the Act. This will help localities develop and implement lawful rules, enable providers to comply with these requirements, and facilitate the resolution of disputes. We conclude that aesthetics requirements are not preempted if they are (1) reasonable, (2) no more burdensome than those applied to other types of infrastructure deployments, and (3) objective and published in advance.
. . .
FCC 18-133, ¶88. Finally, in order to establish that they are reasonable and reasonably directed to avoiding aesthetic harms, aesthetic requirements must be objective — i.e., they must incorporate clearly-defined and ascertainable standards, applied in a principled manner — and must be published in advance. [n246 omitted] “Secret” rules that require applicants to guess at what types of deployments will pass aesthetic muster substantially increase providers’ costs without providing any public benefit or addressing any public harm. Providers cannot design or implement rational plans for deploying Small Wireless Facilities if they cannot predict in advance what aesthetic requirements they will be obligated to satisfy to obtain permission to deploy a facility at any given site. n247
. . .
n247: Some local governments argue that, because different aesthetic concerns may apply to different neighborhoods, particularly those considered historic districts, it is not feasible for them to publish local aesthetic requirements in advance. See, e.g., Letter from Mark J. Schwartz, County Manager, Arlington County, VA, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, at 2 (Sept. 18, 2018) (Arlington County Sept. 18 Ex Parte Letter); Letter from Allison Silberberg, Mayor, City of Alexandria, VA, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, at 2 (Sept. 18, 2018). We believe this concern is unfounded. As noted above, the fact that our approach here (including the publication requirement) is consistent with that already enacted in many state-level small cell bills supports the feasibility of our decision. Moreover, the aesthetic requirements to be published in advance need not prescribe in detail every specification to be mandated for each type of structure in each individual neighborhood. Localities need only set forth the objective standards and criteria that will be applied in a principled manner at a sufficiently clear level of detail as to enable providers to design and propose their deployments in a manner that complies with those standards.
. . .
FCC 18-133, ¶91. Minimum Spacing Requirements. Some parties complain of municipal requirements regarding the spacing of wireless installations — i.e., mandating that facilities be sited at least 100, 500, or 1 ,000 feet, or some other minimum distance, away from other facilities, ostensibly to avoid excessive overhead “clutter” that would be visible from public areas.[n.250 omitted] We acknowledge that while some such requirements may violate 253(a), others may be reasonable aesthetic requirements.[n.251 omitted] For example, under the principle that any such requirements be reasonable and publicly available in advance, it is difficult to envision any circumstances in which a municipality could reasonably promulgate a new minimum spacing requirement that, in effect, prevents a provider from replacing its preexisting facilities or collocating new equipment on a structure already in use. Such a rule change with retroactive effect would almost certainly have the effect of prohibiting service under the standards we articulate here. Therefore, such requirements should be evaluated under the same standards for aesthetic requirements as those discussed above.
As is plain from each of these paragraphs, the FCC was discussing only aesthetics, and not any other topic or local requirement. That is certainly how the Ninth Circuit understood the issue. City of Portland v. United States, 969 F.3d 1020, 1041 (9th Cir. 2020). Thus, while any “aesthetics” requirements in Chapter 12.02 and Resolution 20-65 that materially differ from those in effect at the time the applications were submitted may be preempted, nothing in the Small Cell Order precludes recourse to the remainder of the process and substantive requirements in Chapter 12.02 and Resolution 20-65. Staff has essentially agreed this is so, even though they are not candid about it. For example, Staff has imposed the higher insurance requirements in Resolution 20-65, along with some other conditions.
The Planning Commission is bound by the “Pending Applications” provision in Ordinance 484 “to the fullest extent allowed by law.” The law allows recourse to Chapter 12.02 and Resolution 20-65, excepting only requirements imposed for aesthetics reasons. Staff may think it is not bound by the City Council’s direction and can do whatever it wants without any guiding principles, but Protestant hopes the Planning Commission is more inclined to honor its duties and obligations under MMU 236.080 and 17.04.080. In order to find that the applications are “consistent with the objectives, policies, general land uses, and goals of the Malibu general plan” (MMU 17.04.080) the Planning Commission must first articulate what standards it is applying and precisely what it is finding “consistency” with.
The second issue pertains to the burden of proof Verizon must carry to obtain approval, especially with regard to waivers. MMC Chapter 12.02.050(e) provides that a waiver request may be granted
. . . only if it is demonstrated through clear and convincing evidence that denial of an application would, within the meaning of federal law, prohibit or effectively prohibit the provision of personal wireless services, or otherwise violate applicable laws or regulations. All waivers approved pursuant to this subsection shall be (I) granted only on a case-by-case basis, and (2) narrowly-tailored so that the requirements of this Chapter are waived only to the minimum extent required to avoid the prohibition or violation.
This is not an “aesthetics” requirement; it is a legal and evidentiary rule. Therefore the new Ordinance can and does apply. Yet, even though Verizon sought exceptions or variances to install replacement poles taller than 28 feet, Staff did not apply the “clear and convincing” standard to the municipal permit request. Indeed, the Staff Agenda Report contains no discussion of the evidentiary burden Staff applied or proposes that the Planning Commission apply. The Planning Commission must apply the proper standard when it assesses the waiver requests under the two separate regimes. Protestant contends Verizon did not meet its burden of proof. Verizon sought, and Staff proposes to grant, a waiver from the formerly-applicable MMC Section 17.46.100.B.9, and from MMC Chapter 12 current application form Section 6.B “coverage map” requirements4 for purposes of the municipal permits. Verizon sought, and Staff proposes to grant, a waiver from the similar LIP Section 188.8.131.52 “coverage map” requirement for purposes of the Coastal Development permits. One of the expressly-stated reasons for mandating a coverage map is “whether alternatives exist for providing coverage.” See, e.g., LIP Section 184.108.40.206 and former MMC Section 17.46.100.B.9. Staff catered to “Verizon’s goals and objectives” when it addressed alternatives, but neither Verizon nor Staff chose to tell the Planning Commission or the public what those “goals and objectives” are so they are not in evidence. Neither the Planning Commission nor the public can assess them to determine if those “goals and objectives” are congruent with Malibu’s goals and objectives. Nor can the Planning Commission independently assess potential alternatives since there is no coverage map.5
Staff agreed with Verizon’s contention that the FCC preempted local coverage map demands in the Small Cell Order. Interestingly, Verizon cited to 1140 but Staff focused on note 87, which is actually part of 1137. Regardless, both Verizon and Staff are incorrect and the Planning Commission must reject this position. The FCC did not prohibit demands for coverage maps. What 1140 said was that
“[d]ecisions 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.”
This part of the Small Cell Order was where the FCC was addressing the “effective prohibition” test. By “coverage gap-based approach” the FCC was referring to past decisions that required proof of a complete gap in current adequate coverage, as distinguished from the situation where a provider sought to improve existing coverage.6 See Small Cell Order ¶¶34-42. Protestant here, and only for purposes of this case, is not contending Verizon must prove a complete gap in coverage. The issue is appropriate location for the site and the height of the pole.
But nowhere does the FCC expressly say local siting authorities cannot require a coverage map to assess potential alternatives for siting after need has been shown. Nor could it given the express reservation in 47 U.S.C. S332(c)(7)(B) that local siting authorities can determine the “placement” of personal wireless facilities. “Placement” includes “location.” Even if one accepts arguendo that Verizon has adequately demonstrated an actual need for improved coverage, Malibu has every right to decide where the best location is for that purpose. Even though this is an “upgrade” to an existing facility it may well be that the whole thing should be moved somewhere else. Part of the “best location” exercise is understanding current coverage and the proper location that will meet Malibu’s general plans and policies while still fulfilling any demonstrated need for coverage enhancement/supplementation in the area.
Verizon flatly refused to provide a coverage map. Staff wants to let them get away with doing so based on a strained reading of the Small Cell Order. The Planning Commission must not go along with this ruse. Since there is no coverage map, the Planning Commission lacks the evidence it needs to assess the pole replacement/height variance and determine the proper location. Verizon chose to not supply required information and must now live with that decision.
The Planning Commission must find that Verizon has not carried its burden of providing “clear and convincing evidence” that (1) the variance is justified, (2) coverage supplementation is best accomplished at the current location, (3) the current height is inadequate so a taller pole is required, and (4) the proposed height is the best (or least-worst) solution. You cannot answer those questions without a coverage map and certainly cannot find there was clear and convincing evidence without one. The permit under MMC Chapter 12 must be denied and the permit under LIP Section 3.16 must be denied because Verizon did not provide sufficient information to make a decision on the best location and the proper height at that location.
C. Verizon has not proven the Wireless Facilities will be used to provide any “personal wireless service” and therefore did not show eliqibilitv for the municipal permit7
All the relevant current and former Malibu ordinances apply only to “wireless facilities” that will support “personal wireless service” as defined in 47 U.S.C. see MMC Section 17.46.040 (Definitions); MMC Section 12.02.020 (Definitions).8
Section 332(c)(7)(C) provides relevant definitions:
(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) of this title).
“Commercial mobile service” is defined in 47 U.S.C. §332(d)(1):
[T]he term “commercial mobile service” means any mobile service (as defined in section 153 of this title) that is provided for profit and makes interconnected service available (A) to the public or (B) to such classes of eligible users as to be effectively available to a substantial portion of the public, as specified by regulation by the Commission.
The FCC rules are consistent. For example, 47 C.F.R. §1.6002(i) defines a “Facility or personal wireless service facility” as
“an antenna facility or a structure that is used for the provision of personal wireless service, whether such service is provided on a stand-alone basis or commingled with other wireless communications services. ” (emphasis added)
These definitions collectively demonstrate that a mobile service provider must plan to use the “wireless facilities” sought to be installed in Malibu to provide “personal wireless service.” The FCC has made clear that carriers that do and will provide personal wireless service may also use permitted wireless facilities to support other services like Internet or data services that are not personal wireless services9 on a “commingled” basis. But as a matter of law applicants for Malibu municipal permits must demonstrate that they are eligible for a permit, and to do that the applicant must, at minimum, plead and prove it will use the planned wireless facility to provide personal wireless service.
Protestant asks each Planning Commission member to do a word search in the Verizon-supplied materials included in the Agenda Report. Look for “personal wireless service,” “commercial mobile service,” “telecommunications service” and “common carrier.” The Staff-generated materials use “personal wireless service” once, when quoting §332 of the Act. None of the other relevant terms appear at all.
Verizon did not plead, and Staff (properly) does not propose to find, that Verizon will use the proposed wireless facilities to provide “personal wireless service.” Protestant does not understand why Staff has nonetheless proposed that the application be approved, but the Planning Commission cannot approve a municipal permit unless the applicant proves entitlement. Verizon has not done so. The Planning Commission must deny the municipal permit because Verizon failed to show it is eligible for, and entitled to, a WRP or any other kind of permit to use the public right-of-way, under the current ordinance (MMC Chapter 12) or even the prior ordinance (MMC Chapter 17.46).
Protestant contends that Verizon has not carried its burden of proof, the permit application should be denied and Verizon should not be allowed to supplement its application information at this late date. Verizon and their Staff helpers are likely to try and salvage the application despite this gaping failure of proof, and they will probably now offer additional evidence. We predict they will first attempt to baffle the Planning Commission members using impenetrable but ultimately deceptive jargon. For example, one of Verizon’s favorite gambits is to observe that “Voice over LTE” (VoLTE) is “data” and then imply without actually affirming that any voice services will actually be supported along with all other “data” services provisioned by the wireless facilities in issue.
It is true that VoLTE is digital and packet-switched. But that does not mean the specific facilities proposed here will ever handle any voice traffic. To begin with, we do not know if Verizon will, in fact, be supporting VoLTE over these facilities. It is entirely possible voice will be handled through “Circuit Switched Fallback,” which means voice goes over the 2G/3G network.10 That is analog, not digital packet-switched, and it is not routed over “data” channels.
But even if Verizon does intend to support VoLTE in this area that still does not mean these facilities will be used for it. Both locations employ Remote Radio Units (“RRUs””), without an on-site Baseband Unit (“BBU”). The BBU is elsewhere. We do not know what BBU equipment will be used, or where it will be.
It is important to understand that, just like traditional SS7-based analog voice, LTE uses “out of band” signaling. There is a “control” channel that manages all sessions, e.g., setup and teardown and bearer channel assignment. There is a separate channel that handles the “bearer” — here the voice content. VoLTE only works when the wireless facility supporting the control channel for the user equipment (UE) can connect to, and interoperate with, the LTE “Evolved Packet Core” (EPC) IP Multimedia Subsystem (IMS), which is always distant.
IMS is what contains the Session Initiation Protocol (SIP) telephony functionality and in turn has the gateway to the rest of the public switched network. IMS is also critical for ensuring the traffic channel supporting the voice packets receive adequate Quality of Service priority.
The UE has to obtain its IP address from a Public Data Network (PDN) Gateway node and communicate with a Policy and Charging Rule Function (PCRF) node. The PCRF must then tell Verizon’s network to assign a logical “bearer” or “traffic” channel11 with appropriate QOS from some wireless facility for voice traffic use. This bearer channel is usually separate from the other logical bearer/traffic channels supporting different data flows, such as for email or web-browsing because they have lower QOS requirements. The conversation can then ensue, with the packetized voice content going over the assigned logical bearer channel.
Verizon has not provided any information indicating that these facilities will be supporting either the LTE-based “control channel” or the logical “bearer” channel for any voice traffic, or indeed for any personal wireless service. It is entirely possible that all voice and any other personal wireless services consumed within range of these facilities will in fact be completely supported over channels delivered by the nearest macro-cell-tower. This is quite common in the small cell environment: voice goes through the macro and the small cell handles only the bearer used entirely for other “data” — like Internet access.
The reason is simple: small cells cover a fairly limited area so there must be frequent hand-offs to other cells, and this creates delay and unacceptable call quality. Further, voice traffic, unlike other data, is quite latency-sensitive, and small cells sometimes cannot provide acceptable call quality. So many carriers routinely “send”
VoLTE over macro-cell delivered channels and use the small cell only for data services with lower Quality of Service (QOS) requirements — like e-mail, web browsing and even
Other times a carrier will have the macro cell supply the control channel for all applications and use the small cell for only bearer, and only assign certain types of data. If that is the case here, then Verizon is not eligible for a permit, since these facilities will not in any manner support any personal wireless service. Let us be clear. It is technically possible for a small cell arrangement to handle voice bearer and some even handle the control channel. The problem here is we just do not know, since Verizon chose to not provide any of the relevant information. But if Verizon now tries to backfill, here are the precise questions to ask:
- Is this wireless facility able to communicate with Verizon’s core IMS server and receive sufficient instructions to set up and tear down voice sessions over assigned bearer channels?
- Where is the BBU that will be driving the RRUs?
- Describe the RRU equipment and its capabilities. Will this arrangement employ Cloud or Centralized Radio Access Networking (C-RAN)?
- Will this facility actually handle any VoLTE bearer traffic over wireless logical channels delivered through the physical path between this facility and the user’s equipment?
Unless Verizon affirmatively states that voice traffic associated with UE is in the vicinity and will actually be handled by these facilities, and not some other facility, then the assignment within the physical channel with appropriate QOS from some wireless facility for voice traffic use. This bearer channel is usually separate from the other logical bearer/traffic channels supporting different data flows, such as for email or web-browsing because they have lower QOS requirements. The conversation can then ensue, with the packetized voice content going over the assigned logical bearer channel.
Verizon has not provided any information indicating that these facilities will be supporting either the LTE-based “control channel” or the logical “bearer” channel for any voice traffic, or indeed for any personal wireless service. It is entirely possible that all voice and any other personal wireless services consumed within range of these facilities will in fact be completely supported over channels delivered by the nearest macro-tower. This is quite common in the small cell environment: voice goes through the macro and the small cell handles only bearer used entirely for other “data” — like Internet access. The reason is simple: small cells cover a fairly limited area so there must be frequent hand-offs to other cells, and this creates delay and unacceptable call quality. Further, voice traffic, unlike other data, is quite latency-sensitive, and small cells sometimes cannot provide acceptable call quality. So many carriers routinely “send” VoLTE over macro-cell delivered channels and use the small cell only for data services with lower Quality of Service (QOS) requirements — like e-mail, web browsing and even video. Other times a carrier will have the macro cell supply the control channel for all applications and use the small cell for only bearer, and only assign certain types of data.
If that is the case here, then Verizon is not eligible for a permit, since these facilities will not in any manner support any personal wireless service.
Let us be clear. It is technically possible for a small cell arrangement to handle voice bearer and some even handle the control channel. The problem here is we just do not know, since Verizon chose to not provide any of the relevant information. But if Verizon now tries to backfill, here are the precise questions to ask:
- Is this wireless facility able to communicate with Verizon’s core IMS server and receive sufficient instructions to set up and tear down voice sessions over assigned bearer channels?
- Where is the BBIJ that will be driving the RRUs.
- Describe the RRU equipment and its capabilities.
- Will this arrangement employ Cloud or Centralized Radio Access Networking (C-RAN)?
- Will this wireless facility actually handle any VoLTE bearer traffic over wireless logical channels delivered through the physical path between !hjs facility and the user’s equipment?
Unless Verizon affirmatively states that voice traffic associated with UE in the vicinity will actually be handled by these Wireless Telecommunications Facilities (WTFs), and not some other facility, then the municipal permit applications must be denied because Verizon will not be providing any “personal wireless service” over them.
D. Deny the proposed and implicit waivers/exceptions/variances
The Staff Agenda Report proposes to waive several requirements, but the Planning Commission should not agree. All waivers/exceptions/variances should be denied. In particular, as explained above, the Planning Commission must deny the request for waiver of the coverage map requirement.
Staff has also implicitly granted other waivers.
First, Resolution 20-65 provides that “Placements shall not be in front of dwelling units or schools” but based on the picture it appears that the Kanan Dume Road pole (Item 5.H) will be almost directly in front of the adjacent residential home. Neither Verizon nor Staff addressed this issue. To the extent the standards in Resolution 20-65 apply then a waiver was required. Verizon did not seek a waiver, so one cannot be granted.
Second, the Kanan Dume project is not on PCH. Resolution 20-65 and former MMU Section 17.46.060 prohibit projects within 600 feet of any other telecommunications facility. 12 Neither Verizon nor Staff addressed whether this condition has been met.13 To the extent there is another wireless facility within 600 feet, a waiver is required. Verizon did not request a waiver, so one cannot be granted. Since Verizon did not produce any evidence there were no facilities within 600 feet it has failed its burden of proof, and the application must be denied.
E . Verizon has not proven code compliance or safe electrical design
This is the last topic in our Opposition, but it is actually the most important thing for the Planning Commission to consider. Lives are at stake.
Please now turn to Attachment 1, the signed and sealed presentation by Tony Simmons, PE and Attachment 2, the letter from Susan Foster. When done please pick back up at this point and read what follows.
These two experts — one of whom is putting his professional license on the line — are telling you that Verizon’s electrical design has not been proven safe and that all potential fire hazards have been mitigated. If this Commission is the proper reviewing authority, then it must render affirmative findings of both safety and code compliance. The proposed Resolutions before you have such findings. But the record is entirely inadequate and this Commission cannot responsibly adopt them.
Verizon’s drawings are not “final” and are incomplete. There is at least one potential error relating to the power supply. The Staff claims both safety and code compliance but the Agenda Report contains absolutely no demonstration that Staff gave more than passing concern to this vital subject even though the entire community in Malibu has — for good reason — been extraordinarily vocal about fire/electrical safety concerns in the wireless context for the last eight months. Nowhere in the record is there a positive demonstration or anything more than unsubstantiated claims that the design complies with applicable requirements of the Uniform Building Code, National Electrical Code, and Uniform Fire Code. No engineer vouched for the design. Indeed, Verizon’s engineer expressly disclaimed any opinion on electrical safety or code compliance.
On the other hand, Tony Simmons, PE has provided his professional opinion that
“the record before the Planning Commissions does not support adoption of the proposed findings in Section 3 of the draft Resolutions related to code compliance and general safety and welfare, including but not limited to A. I, 8.2, 8.4, 8.9, C.4, C.5 and E. 1-4 in Resolutions 21-48 and 21-49”
. . . because he cannot confirm with engineering certainty that
“the five recognized hazards associated with the use of electricity have been properly mitigated by the design professional in responsible charge.”
If the Planning Commission is the reviewing authority then it must demand far better evidence and a much more rigorous demonstration and proof that these projects will not cause another fire in Malibu. Verizon failed. Staff failed. We respectfully request that this Commission, consistent with Malibu General Plan Policy 1.1.2, “minimize the risk of loss from fire” and deny these permits.
All of Malibu depends on the permitting authority to ensure that every fire/electrical safety precaution has been taken before a project is approved. That did not happen here. For this reason alone, and in addition to all the other reasons given above, both applications and all permits must be denied on the merits if the Planning Commission finds it has jurisdiction and reaches the merits (which it should not).
ATTACHMENT 1 TO GORDON OPPOSITION
Tony P. Simmons, PE
PO Box 571300
Las Vegas, NV, 89157-1300
To: Chairman Jennings and Members of the Planning Commission
Recommendation to DENY Planning Resolutions 2148 and 2149 based on inadequate proof of mitigation of recognized electrical safety hazards.
Planning Resolution 2048 is Agenda Item 5.H of the Commission Agenda Report prepared for the June 7, 2021, Commission Meeting. This is for:
Wireless Communications Facility No. 20-010. Coastal Development Permit No. 20-028. Variance No. 20-017 and Site Plan Review No. 20-041 — An application for an upgraded wireless communications facility on a new replacement wooden utility pole in the public right-of-way. This WCF is located at 31557.5 Pacific Coast Highway.
Planning Resolution 2149 is item 5.1 of the Commission Agenda Report prepared for the June 7, 2021, Commission Meeting. This is for:
Wireless Communications Facility No. 20-011. Coastal Development Permit No. 20-029. -Variance No. 20-018. and Site Plan Review No. 20-040 — An application for an upgraded wireless communications facility on a new replaæment wooden utility pole in the public right-of-way. This WCF is located at 6213.5 Kanan Dume Road.,
Issue 1: The Agenda Reports prepared for both installations do not contain the consultant’s report.
The first sentence under the heading on the first page of both Commission Agenda Reports states:
“This application was reviewed by City staff and the City’s wireless communications facility consultant for compliance with all applicable codes and regulations in effect at the time the application was deemed complete. This agenda report provides site and project analyses of the proposed wireless communications facility project, including attached project plans, visual demonstration exhibits, alternative site.”
The record submitted by the Planning Department does not include the report prepared by the City’s wireless communication facility consultant and therefore is incomplete. Consequently, I cannot confirm that the five recognized hazards associated with the use of electricity have been properly mitigated by the design professional in responsible charge.
The Five Hazards Associated with Using Electricity
The National Electric Code NEC recognizes five hazards associated with using electricity that must be mitigated. Article 90.1(A) of the NEC states: The purpose of this code is the practical safeguarding of persons and property from hazards arising from use of electricity. This Code is not intended to be a design specification or a construction manual for untrained persons.
Article 90.I(C) of the NEC specifies five hazards associated with using electricity that must be mitigated, (1) shock, also known as electrical contact, (2) thermal effects, (3) overcurrent, (4), fault current , and (5) overvoltage. Each hazard is based on different principles of physics. No one consideration, other than not using electricity, mitigates all hazards associated with electricity.
Electrical contact may stop the heart or cause a reaction that imperils the life or health of the shocked person or other nearby individuals. This hazard is mitigated by ensuring conductors (wires) are insulated or isolated from casual or inadvertent contact by people and that step potential hazards are mitigated. The design professional must select electrical components that are properly insulated for the site-specific environment, that are properly protected from site specific risks to the insulation, and that are appropriate for site specific for environmental conditions.
(2) Thermal Effects
There at least three independent thermal effects to be mitigated.
- (a) Electrical equipment is rated for a specific ambient temperature and altitude and must be derated for higher elevations and higher ambient temperatures.
- (b) Electric equipment and conductors produce heat when conducting electricity and need adequate air flow to ensure proper cooling.
- (c) A fault current may produce an arc flash that can instantly cause third degree burns.
Overcurrent is the when actual current exceed the design current. As an example, a circuit is designed to safely carry 20 Amps. The circuit breaker protecting the circuit is faulty and allows 40 amps to flow. The wires will create more heat than can be dissipated. The temperature of the wire and insulation will increase and eventually cause the insulation to fail, which in turns leads to a fault current, which can create an arc, which can cause a fire.
(4) Fault Current
Fault current occurs when the insulation system has failed and allows the current to travel along an unintended path. Fault current can lead to an electric arc which can start fires, vaporize metal, and cause third degree burns. The fire report on the collapse of an WCF at Otay High School in Chula Vista, California stated that an electric arc was the heat source responsible for the collapse.
All electrical equipment is designed to operate within a specified voltage range. Overvoltage describes a condition when the actual voltage exceeds the voltage range specified for a component in an electrical system. In 2015, 5,800 electric so-called “smart” meters and an unknown number of customer-owned electrical appliances in Stockton, CA, catastrophically failed when the voltage exceeded the specified voltage range. 80 fires resulted from the overvoltage condition. This incident started when a vehicle struck a power pole carrying transmission and distribution conductors. The transmission and distribution conductors made contact. PG&E lost control of the voltage.
SCE power poles near Malibu Canyon Road and Harbor Vista Drive carry transmission and distribution circuits. The pole 250 feet west of Harbor Vista Drive along Malibu Canyon Drive is not protected against being struck by a vehicle. A vehicle striking this pole may cause the proposed WCF to catastrophically fail.
The City of Malibu retained an outside expert to ensure that electrical, structural and other hazards are mitigated prior to approval by the City. The report analyzing each hazard is missing. These omissions alone are grounds to DENY both resolutions until the missing report is provided.
Issue 2: 14 of 15 engineering documents are marked “PRELIMINARY NOT FOR CONSTRUCTION”.
Fourteen of the fifteen engineering documents in each application are marked “PRELIMARY NOT FOR CONSTRUCTION”.
Thirteen of the documents were not certified by the responsible design professional. The design professionals responsible for these engineering documents told the world the documents were not finished.
There is no requirement that preliminary engineering documents be sealed by a design professional. Nonetheless, the Planning Commission must require that all engineering documents be certified as “ready for construction” by the design professional in responsible charge.
“PRELIMINARY NOT READY FOR CONSTRUCTION” engineering documents alone are grounds to DENY both resolutions.
Issue 3: The engineering documents do not include evidence that the overvoltage hazard has been analyzed.
The overvoltage event in Stockton, California exposed the reality of a hazard recognized in the NEC. The applications provide no evidence that this hazard has been analyzed and mitigated. This alone is grounds to DENY both resolutions until the missing report is provided.
Issue 4: Sheet E-3 SINGLE LINE DIAGRAM Is Blank in the Application for the Kanan Dume Installation.
The one-line diagram is the industry standard method to demonstrate that the fault current and overload protective devices are in the correct position in the electric circuit. Without the information provided in the one-line diagram, it is not possible to determine that the overcurrent and fault current hazards have been mitigated.
A more complete but imperfect example of a one-line diagram is shown on the next page. It was taken from the application for the WCF at 31557.5 Pacific Coast Highway (PCH). This one line shows that the WTR device protects the breaker box and the 10 Amp circuit breakers in the breaker box protect each power supply.
It is possible to analyze the one-line diagram at PCH for errors and omissions. It is not possible to analyze the one-line diagram for Kana Dume due to errors and omissions. The missing one-line diagram alone is grounds to DENY resolution 21-49 until the missing report is provided.
Issue 5: The wrong power supply may have been specified at Kanan
Block 5 on Sheet A-6 for the Kanan Dume WCF shows a PSU AC 08 power supply. The same detail is used in the application for the WCF at 31557.5 Pacific Coast Highway. The WCF at Kanan Dume has a battery backup while the WCF at PCH does not. The detail does not include the electrical specifications.
Fortunately, the application for the WCF at 3956.5 Cross Creek Road also specifies PSU AC 08 and includes the electrical specifications for the power supply.
PSU AC 08 requires input energy from a 100-250 VAC system.
Further research found the table below. The table lists five AC power supplies and two DC power supplies. The table was not taken from the manufacturer’s website. It is indicative and not authoritative. It is possible that an AC power supply has been selected for use on a DC battery backup system. The missing report should resolve this question. This alone is grounds to DENY Resolution 21-49 until the missing report is provided.
- The absence of the consultant’s reports, the unfinished engineering documents, and absence of the overvoltage studies each provide grounds to DENY both resolutions until the missing reports are received.
- The missing one-line diagram and the uncertainty of the power supply provide two additional grounds to DENY Resolution 21-49.
Based on the information provided in the materials before the Planning Commission, I cannot confirm with engineering certainty that the five recognized hazards associated with the use of electricity have been properly mitigated by the design professional in responsible charge.
The unsigned, unsealed engineering documents submitted on behalf of Verizon do not demonstrate with engineering certainty that the five hazards associated with using electricity have been fully evaluated and mitigated for these two installations.
The record before the Planning Commission does not support adoption of the proposed findings in Section 3 of the draft Resolutions related to code compliance and general safety and welfare, including but not limited to A.I, B.2, B.4, B.9, C.4, C.5 and E. 1-4 in Resolutions 2148 and 21-49.
ATTACHMENT 2 TO GORDON OPPOSITION
PO Box 1444
Lyons, CO 80540
June 7, 2021
Malibu Planning Commission
23825 Stuart Ranch Road
Malibu, California 90265-4861
RE Planning Commission June 7, 2021 Meeting, Items 5.H and 5.1
(5.H) Wireless Communications Facility No. 20-010, Coastal [kvelopment Permit No. 20-028, Variance No. 20-017, and Site Plan Review No. 20-041 — An application for an upgraded wireless communications facility on a new replacement wooden utility in the public right-of-way; Location: 31557.5 Pacific Coast Highway
(5.1) Wireless Communications Facility No. 20-011, Coastal Development Permit No. 20-029, Variance No. 20-018. and Site Plan Review No. 20-040 — An application for an upgraded wireless communications facility on a new replacement utility in the public right-of-way; Location: 6213.5 Kanan Dume Road
Dear Chairman Jennings & Members of the Commission:
I write this letter in an attempt to prevent another telecommunications-related fire. The city has yet to recover from the Woolsey Fire of 2018. Our review of applications strongly indicate little is being done at the most essential level — the application level where you get your first look at cell tower designs — to ensure that preventable telecom-related fires like the three I reference do not happen again.
The two applications on their face demonstrate that Verizon and its experts did not apply proper engineering rigor with regard to fire hazard prevention. The diagrams are preliminary and incomplete. No engineer vouched for them. There is no way to independently assess for whether, and then find that the projects comply with the Uniform Building Code, National Electric Code, Uniform Plumbing Code, Uniform Mechanical Code, and Uniform Fire Code (see LIP Section 3.16.5.A.) There is not sufficient evidence for any finding that these facilities will not pose a threat to public health. (see LIP 3.15.4.A.) Indeed, the evidence to date indicates that Verizon may be using the wrong power supply.
Even worse, the record implies that Staff did not spend much, if any, time analyzing electrical safety. Staff asserts that the design is safe and code compliant but it does not include any reports or analyses explaining how it came to that conclusion. For all we know they did not really even look at the issue. If they had they would have noticed the missing one-line diagram in the Kanan Dume application and the power supply issue in the same application.
At this point, you have no choice. You must reject these applications until Verizon proves, with and complete evidence, that the design is fully code-compliant and was designed so as to mitigate all fire risks.
For the record, I will remind the Planning Commission of three telecom-connected fires, two of which occurred in Malibu. This is precisely what we aim to avoid.
A. MALIBU CANYON FIRE, October 2007:
Santa Ana winds swept through Malibu Canyon, knocking over three utility poles. Those poles sparked a fire that burned nearly 4,000 square acres. It destroyed three dozen cars and 14 structures including Castle Kashan and the Malibu Presbyterian Church. It also damaged 19 other structures and injured three firefighters.
Five years later three telecommunications carriers, AT&T, Verizon and Sprint (now T-Mobile), settled with California utility regulators for a joint fine of $12 million in equal shares, $7 million designated for California’s general fund and the remainder going to new utility pole inspection funding. As part of the 2012 settlement, AT&T, Verizon and Sprint did not admit to culpability for overloading the utility poles. The power lines on the poles that fell were owned and operated by Southern California Edison (SCE) and the poles were jointly owned by Edison, AT&T, Sprint, Verizon and NextG.
NextG, now owned by infrastructure builder Crown Castle International, Inc., and Edison initially fought the CPUC but ultimately admitted culpability in overloading the utility poles and misleading investigators which all five parties were accused of doing.
Under the 2013 settlement, Edison and NextG admitted that one of the failed power poles was overloaded with NextG telecommunications equipment when the fire started, in violation of CPUC rules, and that Edison did not act to prevent the overloading. NextG admitted that a consultant who testified on Edison gave “incorrect” information by stating that all items attached to the failed poles had been saved as evidence. Investigators later found that five pieces of equipment related to the investigation, including two NextG cables, had been discarded.
Edison reached a $37 million settlement with the CPUC for its admitted role. NextG was charged with $14.5 million in penalties.
Of the $37 million Southern California Edison agreed to pay. $20 million was directed as a penalty paid to California’s general fund and $17 million directed to assessing loads and working to improve Malibu Canyon.
Under the terms, Edison admitted it violated the law by not taking action to prevent the overloading of its pole by third-party telecommunications equipment.
SCE also acknowledged that one of its employees had concluded that a replacement for the overloaded pole that started the fire in the first place didn’t comply with the CPUC’s safety regulations for new construction. Edison should have worked to remedy the situation back in 2007. They did not.
Under the agreement with the CPUC, Southern California Edison admitted that it violated the law by not taking prompt action to prevent a telecommunications company from attaching cable to jointly owned poles in Malibu Canyon. Edison also acknowledged that a letter it sent to the CPUC after the fire did not identify pole overloading and termite damage as possible contributing factors in the failures. Damages paid by all five companies involved with the fire exceeded $60 million. A significant portion of the penalty imposed by the CPUC on the five parties was directed to pole inspection.The need to spend millions on pole inspections to look for overloading and faulty equipment frustrated one of the Malibu City Councilmembers who until recently was an active of the Malibu City Council. On February 27, 2013, the Malibu Times quoted Malibu City Councilmember Skylar Peak, an electrician by trade, just after the NextG settlement:
“[NextG] should have installed equipment that was safe in the first place. It’s frustrating that we have to go back to check now.”
He called the agreement a “step in the right direction” but not enough to fully address power safety in the city.
“There’s a lot of old equipment in Malibu that needs to to looked at — Not just NextG [equipment].”
B. WOOLSEY FIRE, November 2018:
A 2018 wildfire that killed three destroyed 1,600 homes — over 400 of them in Malibu — more than 96,000 acres and cost over $6 billion. The Woolsey fire raged for two weeks. A redacted version of the Woolsey fire investigation report obtained by the Ventura County Star concludes Southern California Edison equipment associated with an electrical circuit was the cause of the blaze, though a communication line may have played a significant role.
The report stated:
“The Investigation Team (IT) determined electrical equipment associated with the Big Rock 16kV circuit, owned and operated by Southern California Edison (SCE), was the cause of the Woolsey Fire,”
Under strong winds, a guy wire on a steel pole connected with an energized conductor “heated material” to fall on vegetation “thereby causing the Woolsey Fire,” the fire report states.
A “communication line” that was up to the steel also energized by the incident; a lashing wire is a technique that can used by wireless communications carriers to secure lines to utility poles. If the lashing wire is secured or the equipment is flawed or outdated, electricity can escape, and arcing can take place. Arcing can reach temperatures up to 4000° in less than 1/10 of a second.
A second fire was reported about a quarter of a mile away underneath the communication line. The two fires merged to become the Woolsey fire, the report says.
However, five full pages and notably, several sentences in the concluding remarks, remain redacted. The 70-page report includes the redacted pages under a section called “Violations.”
The release of the full investigation report into the Woolsey Fire was delayed by a criminal investigation by the California Attorney General’s Office.
Absent any additional evidence, Southern California Edison claims it is likely that its equipment was with the start of the blaze. In January 2021 SCE agreed to pay S2.2 billion to settle insurance claims for the Woolsey Fire.
SCE representative stated the cause or causes of the Woolsey Fire cannot be determined until its investigators can look at the evidence collected by officials. That evidence is in the possession of the California Department of Forestry and Fire Protection. Investigators collected metal shavings, melted plastic, guy wire and other items, according to the fire report.
Without admitting wrongdoing or liability, Edison has settled with the public agencies that sued the utility, agreeing to pay $210 million to the public agencies.
SILVERADO FIRE. October 2020
The Silverado Fire broke out in hills near Irvine and forced, together with the Blue Ridge Fire just to the north, the evacuation of over 130,000 people in Orange County. Two firefighters suffered serious burns and at least 17 buildings were damaged or destroyed. According to Southern California Edison’s report to utility regulators, a “lashing wire” that ties a telecommunications line to a cable may have come into contact with a separate conductor line above it.
The wire may have belonged to T-Mobile, not Edison, the utility said in a recent filing with state utility regulators.
A report filed Oct. 26, 2020 by Southern California Edison to the California Public Utilities Commission opened an investigation regarding the potential role of a “lashing wire” as a cause of the Silverado Fire in Irvine.
The report, obtained by Irvine Weekly, indicates that a component of a telecommunications line, a lashing wire, may have contacted a SEC power line and ignited the fire.
Here is the report in full:
“SCE submits this as it may involve an event that meets the subject of significant public attention or media coverage requirement. Preliminary information reflects SCE overhead electrical facilities are located in the origin area of the Silverado Fire. We have no indication of any circuit activity prior to the report time of the fire, nor downed overhead primary conductors in the origin area. However, it that a lashing wire that was attached to an underbuilt telecommunication line may have contacted SCE’s overhead primary conductor which may have resulted in the ignition of the fire. The investigation is ongoing.”
A lashing wire, which does not carry any current, is one-third of a telecommunications line, according to Southern California Edison Chris Abel, who said:
“Telecommunication wires have three components, there’s the cable itself, the wire and the lashing wire winds around and hold them together. Telecommunication lines are third party owned, and they are below our power lines.”
THE “LASHING WIRE” WARNING
What the lashing wire involvement in both Woolsey and Silverado tells us is that a lashing wire was not properly wrapped and/or secured, with disastrous consequences. In the Woolsey Fire, a telecommunications company whose identity we do not know of the ongoing criminal investigation by’ the Califomia Attorney General ‘s office, may be primarily or at fault. And in the case of the Silverado Fire in 2020, SCE is pointing to T-Mobile.
We don’t know what is happening with the securing of the lashing wires, but we know something is going wrong when designed and installed lashing wires are not supposed to come loose. It could be an engineering failure, or it could a technical implementation failure, but something is not done correctly.
As Tony Simmons, P.E. pointed out to me, it could that Brand X lashing wire is used and the technicians may be using Brand Y installing tools. Metal lashing is a recognized hazard if it is not done right. As Mr. Simmons stated to me, if he were the owner of a utility pole, such as SCE or poles jointly owned by multiple carriers, he would want to know what are people are doing.
It is the responsibility of the telecommunications company to secure their lashing wires properly at both ends, and it is the responsibility of the owner to make sure that whichever company is renting out space on their poles is securing the telecommunications wires according to appropriate engineering protocol. If one end is coming unwrapped and getting into a distribution line, you have two responsible parties — the telecommunications carrier that owns the lashing wire and the owner of the pole which is, in most cases in Malibu, SCE and possibly SCE along with other partners. Somebody is not mitigating a known hazard.
I do not mean to suggest there is a lashing line problem in these proposed projects. The fiber here appears to be underground. But the lashing example serves to show that electrical safety has to a priority in areas, and it is clear that the utility and telecommunications companies have simply dropped the ball. I have offered three examples and there are countless more throughout the state of California confirming the role of utilities in starting wildfires — and telecommunications is a utility. When safety is not made a top priority on electrical equipment, it leads in one catastrophic direction, and that direction is fire.
The foregoing also demonstrates that the burden of ensuring rigorous safety design and code compliance falls on permitting authorities. At the front end, before any project is approved. the Municipal City and Local Implementation Plan standards require code compliance and an affirmative finding of safety. So now, since neither Verizon nor Staff performed their duties, you must do yours: Deny these applications and require a far more rigorous demonstration.
Malibu’s safety and rests in your hands. If you do not do your job and insist on proof of safety before you approve them then you will bear some of the responsibility if there is a defect and it starts another devastating fire.
PLANNING COMMISSION MUST DENY THE TWO INCOMPLETE APPLICATIONS:
The Planning Commission has two applications:
- 31557.5 Pacific Coast Highway with applicant Motive for Verizon Wireless
- 6213.5 Kanan Dume Road with applicant Motive for Verizon Wireless
You have two applications from Verizon that say exactly the same thing on page 1: “This application was reviewed by City staff and the City’s wireless communications facility consultant for compliance with all applicable codes and regulations in effect at the time the application was deemed complete.” There is, however, no documentation provided regarding the City staff and consultant’s supposed review.
Please on the phrase “deemed complete”. Within these two applications you have diagrams and documents crucial to evaluating the safety of the proposed cell towers with the wording “PRELIMINARY NOT FOR CONSTRUCTION”. This means the document has been distributed for review and discussion. This does not mean the are worthy of being used for approvals and affirmative safety/compliance findings. The Kanan Dume Rd. application is incomplete since the space for the crucial one-line diagram is blank.
In the white paper Tony Simmons and I submitted to this Planning Commission in early March of this year, we explained why we required each document in our Electric Fire Safety Protocol. It’s true that protocol does not apply to these two small cell applications. Yet, fundamental engineering requirements apply to ALL of these applications, and a one-line diagram is an integral part of the engineering documents.
We explained in our paper submitted to you three months ago that a one-line diagram is important for the following reasons:
- A one-line diagram of the electrical system is important because it provides a map of the electrical installation and serves as the primary reference for all the other documents.
- This document allows less electrical workers to quickly troubleshoot electrical malfunctions and failures and to identify a de-energization point.
In both the applications before you, professional engineers were willing to sign their names and stamp their seals for purposes of RF radiation modeling. They were willing to put their license on the line for the proposition that the modeling is in compliance with the FCC. That’s easy modeling to do because the FCC sets the allowable regulatory level so high that virtually every cell tower comes in under that regulatory ceiling. So that is not a high-risk venture for a professional engineer. But look immediately under the stamp on page 65 of 79 in the PCH application and pdf page 66 of 78 in the Kanan Dume application. The electrical engineer expressly disclaimed responsibility for everything other than RF compliance.
You therefore do not have any electrical engineers vouching for electrical design safety or code compliance. Apparently, no professional engineer was willing to put his/her name and seal on the electrical engineering designs of the cell towers on these applications. That should set off an alarm for those reviewing these applications. Staff should have asked questions and required better and complete diagrams. Staff could not have any meaningful assessment given the lack of reliable information. They were not willing to produce their own report that addresses this topic, and that should set off a second loud alarm.
You now have Tony Simmons, P.E. signing his name and stamping his on his evaluation and professional analysis of these two applications. When a professional engineer signs and seals a document, it is submitted with the highest level of accountability possible. Tony Simmons has found these applications severely deficient. He affirmatively states that “the unsigned, unsealed engineering documents submitted on behalf of Verizon do not demonstrate with engineering certainty that the five hazards with using electricity have fully evaluated and mitigated for these two installations.”
He affirmatively states that”the record before the Planning Commissions of the Resolutions does not support adoption of the proposed findings in Section 3 of the draft Resolutions related to code compliance and general safety and welfare, including but not limited to A. 1, B.2, B.4, B.9, C.4, C.5 and E 1-4 in Resolutions 21-48 and 21-49.” You now have a shrieking third alarm.
Why is this important? When a doctor makes a mistake, a single patient can die. When a criminal attorney is derelict in his/her duty and fails to adequately represent a client, that client — even though he/she may be innocent — may lose their freedom or even their life. When an engineer makes a mistake, hundreds if not thousands of can die.
That’s why “signed and sealed” is so profoundly important in the world of engineering. There is not a single electrical document or diagram that is signed and sealed by a professional engineer in the two applications you have before you. Yet Tony Simmons is willing to defend his recommendations to the Planning Commission in any proceeding before the PE Board in his professional analysis of these applications. Like all professional engineers. Tony Simmons is prepared to defend all his work product in any proceeding before the PE Board. That is why the lack of sealed diagrams is important. The work is so shoddy that no PE would attest to it. And we suspect that the Staff is not willing to show their work because they did not, in fact, peform any meaningful review.
DEMAND COMPETENCE AND PROOF OF WORK
Good governance requires a documented trail of the decision-making process. With electrical devices such as cell towers, you have an engineering subject matter expert who is paid for his/her expertise on ensuring compliance with the applicable electric codes. Yet, without a report, you don’t know that the proper steps have been taken to determine whether or not the applicant — in this case Verizon — is in compliance from an electrical engineering perspective. The available
evidence suggests that, like Verizon, the Staff experts have simply not done their job.
Malibu deserves better. Malibu deserves the best of your subject matter when it comes to permitting. Malibu deserves the when it comes to the electric engineering documents that are supposed to be provided by Verizon, or whomever the carrier may be. These documents
should be signed and sealed by professional engineers willing to professionally defend their approval of these designs, diagrams, and documents. Malibu deserves a Staff that is willing to show its work as well and be able to document the basis for its conclusions and
We respectfully request that the Planning Commission police the wireless companies’ efforts and work by denying these two applications until we can see adequate proof that due diligence has been exercised. how it has been exercised, and enough information to confirm code compliance. We need to the City’s wireless consultant and Staff analyses.
The wireless companies need to be given a clear message that Malibu insists that their facilities be proven safe and they will be required to show their work and present adequate information for you to make the required safety and code compliance findings. Only then can Malibu residents be assured that every step has been taken to minimize the risk of yet another wildfire caused or made worse by equipment breakdown in a WTF.
Both applications must denied.
- Staff agrees, at least conceptually, that each permit is separate when it notes on Staff Agenda Report page 9 that “a proposal for an upgraded facility would materially result in an equivalent bundle of permits (WCF, CDP, SPR, VAR) and equivalent hearing before the approval body.” (emphasis added) ↩
- AGGRIEVED PERSON – any person who, in person or through a representative, appeared at a public hearing of the City of Malibu or the California Coastal Commission in connection with the decision or action on a Coastal Development Permit application, or who, by Other appropriate means prior to a hearing, informed the City of Malibu or the California Coastal Commission of the nature of his/her concerns or who for good cause was unable to do either. “Aggrieved person” includes the applicant for a Coastal Development Permit. ↩
- The Small Cell Order is available at https://docs.fcc.gov/public/attachments/FCC-18-133A1_Rcd.pdf ↩
- New Chapter 12.02 and Resolution 20-65 do not have express application content requirements so they do not explicitly call for coverage maps. Chapter 12.02.060.D provides that the Director shall determine what is required in the application. It goes on to state that in any event the applicant shall submit “all required fee(s), documents, information, and any other materials necessary to allow the Director to make required findings and ensure that the proposed facility will comply with applicable federal and state law, the City Code, and will not endanger the public health, safety, or welfare.” The Director has promulgated a PROW form, and it does expressly require coverage maps. See https://www.malibucity.orq/DocumentCenter/View/16676/PLN-WCF-Submittal-Checklist-for- PROW?bidld=, Section 6.8. Regardless, the Planning Commission cannot make all required findings without a coverage map, as explained below. ↩
- All this assumes these projects will be used to provide personal wireless service in the vicinity. If these facilities will not provide personal wireless service then Verizon is not eligible for the requested municipal permits. We will return to that subject below. ↩
- Again, we will return to the question of coverage improvement, and need, below. ↩
- The following discussion does not apply to the Coastal Development Permit application. Those permits are available to all providers of wireless communications services, including those that provide only private mobile service. See LIP Section 2.2 (Definitions). This is yet another situation where the municipal permit program substance differs from that in the Local Coastal Program. ↩
- This is not a Spectrum Act “eligible facility” or “wireless facility modification” request. See MMC Section 12.02.020 (Definitions). The entitlement concepts applicable to those do not apply here. ↩
- Wireless Broadband Internet Access is NOT “personal wireless service” so it is not a “covered service” for purposes of S332(c). That is so because the FCC has ruled it is not offered on a “common carrier” basis and is therefore not a “telecommunications service.” It is instead a “private mobile service.” A provider that will offer only private mobile service through a proposed facility is not “covered” by 47 U.S.C. S332(c) and is ineligible for a permit under all current and former MMC provisions. ↩
- See https://ieeexplore.ieee.org/document/9004596. Staff Agenda Report p. 21 notes that the “replacement antennas at this location” will be “for [Verizon’s] 4G LTE network.” There is no indication they will also handle 2G/3G. ↩
- The “channel” is not a singular dedicated physical path. It is “logical” and defined through time slot assignment within the physical channel. ↩
- Since the 600 foot separation requirement was in MMC Chapter 17.46 when Verizon filed its applications the Small Cell “advance publication” requirement has been met. ↩
- Staff found there are no schools, playgrounds or parks within 500 feet for purposes of LIP Section 3.15.5.N, but it did not consider whether the 600 foot wireless facility separation requirement in the MMC was met. ↩