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HomeMy WebLinkAboutPlan Wireless Newsletter Oct/Nov 2008You may not practice in San Diego, but if your jurisdiction grants Conditional Use Permits with expiration dates, this is about you Vo1.13,No.6 PlanWireless October/November 2008 A Newsletter About Planning for Personal Wireless Service Facilities ATC v. City of San Diego (Part Two) The City of San Diego's Premise This article builds on the December 2007/January 2008 issue of PlanWireless where the complicated lawsuit by American Tower Corporation (ATC) against the City of San Diego was described One of the advantages of reporting on a lawsuit in limUo, which this one is, lies in time. PlanWireless needed this time to go to San Diego to visit the sites involved. ATC v City, of San Diego is currently on hold. ATC's Premise ATC has made a major investment in what most people call "towers." At least ten of ATC's Conditional Use Permits have expired and no longer meet the City's - regulations. All ten of ATC's towers now exceed the City's height limits, although they did not exceed height limits when originally approved. ATC claims in the lawsuit that they have a vested right to maintain their original structures and they refuse to shorten their towers just because the City lowered its height restrictions. ATC has sued on a variety of claims, but the expired CUPS are the major issue. z ",: - :. °p ,f A' I .~ ~ '~ _° n', * ~ , ~,. ~ - ~~ °~a~ a _ t j} p '^ r 7 B 1 ro ~ : ~°' ~" g ~ ) , ~, B ~ ~ j, ~~ ~ ~ ~ ~ .. ~~ ,. r ~` I ~ 7~ '.v Y. _ ~q- fit a.. ~ ~ *~ % N 1 ~ ~N ~ ., ~ u €p- - ~ k ..V ii I t. 1 ' ~ ~. ~, ATC's disputed tower at 2222 Verus St. shows only one personal wireless service facility. The only thing ATC owns is the monopole topped out at "A." The T-arms for 12 antennas are empty at "B" and probably intended for Sprint, which never installed its antennas. The antennas at "N" are for Nextel, which is a different carrier than Sprint. (The company "Sprint- Nextel" is not a carrier but a holding company for two separate and distinct carriers.) If ATC cut its monopole at "C," the City would give them a new CUP. If height is so important to ATC why is the top of the monopole empty? Is it because no carrier wants to be there? The City finally has a set of regulations it can live with and ATC doesn't meet them in at least ten Conditional Use Permit locations. The City wants ATC to bring the Wireless Communication -Facilities (WCPs) (th'afis what the City calls them) into compliance with the City's new regulations so the City can give ATC new Conditional Use Permits. The first of the Conditional Use Permits expired in 2004 and all of the towers are still up. What PlanWireless Believes This Case is Really About The Telecommwiications Act of 1996, which is invoked by both sides in this lawsuit, is about "personal wireless service facilities." It is not about "towers" which merely serve as structures, nor is it about "WCFs," which according to the City mix the tower and the personal wireless service facility, nor is it about Wireless Telecommunication Facilities (WTFs), which is ATC's preferred term. By conferring the title of "WCF" on a tower, the City focused its attention on the infrastructure, rather than what was on it ATC was allowed to add or Published by Kreines &Kreines, Inc., Consultants to Cities & Counties on Wireless Planning 58 Paseo Mirasol, Tiburon, CA 94920, (415) 435-9214 phone and (415) 435-1522 fax e-mail: mail@planwireless.com -web site: http://www.planwireless.com r ~, change personal wireless service facilities on the tower at will, according to PlanWireless' comparison of the approval documents compared to the actual sites, but the City of San Diego focused on the tower as the subject of the Conditional Use Permit. And focusing on towers is where the trouble starts and where both sides' arguments go astray. Standing, or Having the Right to Sue The City of San Diego claims that ATC has no standing to sue because it is not licensed as a carrier by the FCC. True enough, and that would still be the case if the City had limited its authority to permitting "personal wireless service facilities;' as the Telecommunications Act explicitly __ - _provides._But_only_ perSOnal W1re]e SS service carriers can own and operate personal wireless service facilities. Instead, the City of San Diego (like many cities and counties) acknowledged a tower company as owner or a "WCF;' and therefore granted ATC status. Once a municipality grants status to an applicant or a permittee, even if it is an alien from another planet, thatapplicant or permittee may have standing in its particular application. And when that applicant-or permittee has complaints about its previously granted status, it may have standing to sue. its property. Height The most offensive (according to the City) characteristic of the original "WCFs" approved by the City is excessive height. The City itself acknowledged this by assessing the existing facility and stating for the next Conditional Use Permit: a substantial reduction in height will be expected with the next submittal. Since the tower was considered the principal part of the "WCF," this meant either tearing a monopole down and rebuilding it or getting out the chain saws and sawing most of the tower down. Had the Conditional Use Permit been for a personal wireless service facility, as authorized by the Telecommunications Act, the permittee (a carrier, not a tower company) would then have to find another spot. Instead, the aggrieved party becomes the tower owner with a Conditional Use Permit fora "Wireless Communication. Facility," and the tower owner is being told to give up part of The City of San Diego was aware that the FCC- licensed carriers were the parties that are impacted by the height reduction. In one of their denials, the Planning Commission resolved: The project, as it exists, does not result in n visually desirable project. If redesigned to eornply with tlxe 30 foot height lintit, Verizon services to the community and passing commuters woaAld be significantly reduced. However, Verizon has the responsibility of exploring available alternatives that would address Published by Kreines &Kreines, Inc., Consultants to Cities & Counties on Wireless Planning 58 Paseo Mirasol, Tiburon, CA 94920, (415) 435-9214 phone and (415) 435-1522 (ax e-mail: mail@planwireless.com -web site: http://www.planwireless.com 07 0~ Do You Want to Continue Receiving P/anWire%ss? OO ~~ Cities and counties that have not received a free subscription in the past can receive a free subscription to PlnnWireless. Cities and counties that have received free subscriptions in the past can subscribe for $30 for 6 issues. Private companies & individuals can subscribe for $60 for 6 issues. If you would like to receive a subscription to PlanWireless, please send the Following information to Kreines &Kreines, Inc. by mail (58 Paseo Mirasol, Tiburon, CA 94920), phone (415-435-9274), fax (415-435-1522), or e-mail (mailC~;planwireless.com): Name/Title: Jurisdiction/Company: Staple YQUr Business Card Here E-Mail Address: Mailing Address: Back Issues ($10 each): Please ]et us know the back issues you wish to order (March 1996 to Aug./Sept. 2008). This newsletter is designed to provide information about plamring for personal wireless service facilities. It is sold and distributed free with the understanding that P1nnWireless is not providing legal, planning or any other professional advice 'or serviceswitll this newsletter. Please contact Kreines &-Kreines,-Inc-ifyou would like to obtain professional-planning services. If legal or other expert assistance is requi legal requirements as well ns reduce the negative impact on their existing network. the services of a competent professional should be abtatned. ATC will lose hundreds of thousands of And so, it is the personal wireless service facility of Verizon, not the tower of ATC, that is impacted by the City's actions. Why, then, wasn't Verizon the applicant for a personal wireless service facility, rather than a tower company allowed to be a pcrmittee for a „ W CF"? Buying the Sky ATC built several monopoles scores of feet higher than the San Diego height limit in the 20~h Century. This now impermissible height gave ATC a competitive advantage over new applicants by 2000, when the City's rules forced lower mounts in San Diego. ' But ATC claims that their rights can't be taken away, even though ATC and its successors signed 10- -- yearand 20-year Conditional Use Permits with specific expiration dates.t Now ATC claims that its business success depends on keeping heights high in order to facilitate co- location as stated: bi fact, the city has required eitfter removal or replacement ofATC's facilities with a substantial reduction in height, effectively removing ATC's collocation capabilities. As n result of these ' ATCs most common predecessor was Spec[raSite, a tower company lhat "merged" with ATC several years ago. Spec[raSite should have known (ts Conditional Use Permits in the Cit)~ had expiration dates and ATC should have known it was obtaining short term asseLS- dollars. But the expected co-locations have not occurred and, because deployment heights are dropping everywhere (not just in San Diego), it is not likely that high positions on the mounts will be sought by Cellular, PCS, 700 MHz and AWS carriers. Competition To add insult to injury, ATC claims that the City is putting wireless carriers on City-owned monopoles (only one of which is identified), which are exempt from the height restrictive regulations. Once again, ATC is looking at a "Wireless Telecommunication Facility;' which ie basically a tower. It is not the tower but the type of wireless services that are attached to a monopole that invokes the term "personal wireless service facility' and the protection of the Telecommunications Act. For its part, the City defends its right to rent to FCC- licensed carriers on it own "WCF" when the tower was built for municipal purposes: ATC argues that City's esernption for land use regulations ns it relates fo its own structures cremes an excessive burden on interstate commerce. City's exemption is founded in n long line of legal precedence and supports City's reasonable exercise of ifs police powers to regulate the health; safety and welfrire of its citizens. City's wireless strucftrres (sic)~ninih function is for emergency communications, eg., fire and police. Published by Kreines &Kreines, Inc., Consultants to Cities & Counties on Wireless Planning 58 Paseo Mirasol, Tiburon, CA 94920, (415) 435-9214 phone and (415) 435-1522 fax e-mail.' mail@planwireless.com -web site: http.'//www.planwireless.com However, the City fire, police and public safety wireless facilities are not personal wireless service facilities, and City users arc not protected by the Telecommunications Act. The fact that police and fire responders are on a monopole does not make them identical to FCC-licensed carriers ... their frequencies are allocated, not auctioned. Because public safety facilities are hung on a pole that looks like a monopole accommodating personal wireless service facilities does not make the pole a "WCP." Only when aFCC- licensed carrier's facilities are hm~g on the City-owned monopole should the carrier apply for and be granted a personal wireless service facility permit. This the City did not do. Personal wireless service facilities can be attached anywhere: rooftops, water tanks, city halls, light standards ... who owns the mount and what it looks like is immaterial to determining whether the attachment is a personal wireless service facility or not. Conclusion of Part Two ATC v. City of San Diego will be around a long time because it is held up pending a decision in Sprint v San Diego County. Readers of PlanWireless will recall that San Diego County won in Superior Court but lost in federal District Court and at the Ninth Circuit Court of Appeals. Since then, many objectors to the decision have forced an eii bdnc proceeding by the Ninth Circuit. En Banc means that all judges in the Ninth Circuit will look at the Sprint v. San Diego County case instead of the three judges who found for Sprint. In the Sprint v San Diego County case, Sprint mounted a facial attack on San Diego County's ordinance So, similarly, has ATC launched a facial attack against the City of San Diego, claiming the City's ordinance is burdensome and overreaching. Our subscribers can look Forward to more on ATC v. - Snn Diego as well'as Sprinl~v: Sun Diego in future issues. California Public Utilities Commission Investigates T-Mobile Over Deployment Practices On August 30, 2008, the Sari Francisco Chronicle reported that the California PUC ... is investigating claims tlmt cell phone giant T- Mobile has been improperly putting up new cell transmission sites throughout Northern California without complying with local building laws. PlanWireless would like to clarify that cell sites in California are normally permitted by zoning, usually a Conditional Use Permit (CUP), after which any building permits would need to be consistent with the underlying CUP. If investigators are looking for code violations, the CUP for each approved site is the first point of reference. As PlanWireless has been telling its readers for years, cell sites rarely look like the drawings they were approved by. In many jurisdictions, the drawings are often called "as-builts;' meaning they are faithful representations to what was constructed. Since the "as-builts" were drawn prior to construction, what happens in the field is often improvised and therefore different than the "as-builts ° Building permits rarely show the complete "as-builts," referring instead to the CUP drawings. The notion that a state agency can crack down on activity that is endemic and longstanding in the wireless industry is laughable. Where would the PUC begin? What would the PUC do if alleged faulty practices were confirmed? The California PUC can allege wrong-doing under their General Orders 7.59 and subsequent revisions and then invoke state sovereignty over cities and counties. But if the PUC tried to shut down a cell site that is "on the air" they would probably be told by the FCC to back off. The FCC just received $4.2 billion from T-Mobile for Advanced Wireless Services auctioned in 2006, and they aren't about to jeopardize their relationship with a foreign government Did PlanWireless say a "foreign government"? Yes, T-Mobile is wholly owned by the Lerman State Telecommunications Agency, Deutsche Telekom. They use T-Mobile as a carrier name in fhe U.S., much as they once used names such as Omnipoint, VoiceStream, Powertel and APT. It's easy to pick on T-Mobile, because it is the smallest of the four national carriers. But the. big four carriers all source work to other companies and some of these companies may be less honorable than others. Until local governments ensure that wireless projects are maintained according to the local government's approvals, the incidence of building and modifying cell sites without proper authorization from local governments will continue unabated. And with little oversight, tower companies such as ATC (see the other article in this PlanWireless issue), may claim rights they never had in the first place. Published by Kreines 8 Kreines, Inc., Consultants to Cities & Counties on Wireless Planning 58 Paseo Mirasol, Tiburon, CA 9492Q (415) 435-9214 phone and (415J 435-1522 fax e-mail: mail@planwireless.com -web site: http://www.planwireless.com