This lawsuit occurred because of an attempt to place a personal wireless service facility in the house shown in the photograph below.

The First Residential Cell Site was Built in Carlsbad in 2000.  Hardly anyone complained when PacBell Wireless (now Cingular) proposed antennas in a false (faux) chimney on a house two doors away from the one shown.  Since there were no non-residential sites nearby, the City approved the site.

At this juncture, Carlsbad treated the PacBell (now Cingular) application as most cities and counties do: as a  one-at-a-time phenomenon when maybe the entire city had approximately 20 to 30 cell sites.  Now Carlsbad may be looking at 50 sites, as will your community.  (Yes, this is crazy California.  But what happens in California usually follows suit in other locations.)

2001: AT&T Files an Application for a Conditional Use Permit (CUP) ...  Who would have guessed that, when another house-mounted cell site was tried again in the same neighborhood, the neighbors would become restless?

On 5/16/2001, the Carlsbad planning staff recommended approval, noting:

·            Lack of feasible alternatives. (According to the District Court record, the lack of feasible alternatives was cited by the planners because the applicant represented that were none.)

·            No "aesthetic" effects.

·            Generation of only one or two vehicle trips per month.

·            No noise impacts.

·            General (Comprehensive) Plan recognition that "these types of facilities are necessary and essential to the infrastructure support of urban land uses." (After interviewing several Carlsbad planners, no one was able to tell PlanWireless where in the General Plan such language existed.)

But the neighbors argued the opposite to the Planning Commission:

·            "Aesthetic" impact from an expanded garage.

·            Commercial uses on residential property.

·            Health impacts (even though it was understood by nearly everyone that radiofrequency emissions could not be used to deny the application).

·            Decreased property values.

The Planning Commission sided with the neighbors and denied the application.  AT&T appealed to the City Council.

September 2001:  City Council Upholds the Denial … Two hearings were held in which the Mayor represented the "swing" vote.  He held out at the first meeting for more information on the cumulative health impacts.  According to the District Court Judge:

The decision on the appeal was delayed because the mayor wanted further information concerning the RF emissions from the Pac Bell site stating that if the emissions were anywhere near negative (presumably in comparison to the FCC guidelines) he would oppose ATT's application, but if positive would vote for approval.

The mayor voted to deny at the second hearing even though the cumulative health impacts were shown by AT&T to be 1% of the FCC Guidelines.  The mayor was emphatic on:

… the need for a report on what the city can and cannot legally do regarding cell site applications and added "I have a real problem with violating the rules … but I think there are rules and there are certain things you have to look at as far as what is best for our community in general."

A written resolution was filed on 10/3/01 that cited reasons for the denial and which introduced a new document: Carlsbad Policy No. 64:

·            Policy No. 64 calls cell sites "wireless communication facilities" while the Telecommunications Act is limited specifically to "personal wireless service facilities."  When citing the law, it is good to be accurate.

·            According to Policy No. 64, "the Federal Communications Commission (FCC) mandates that licensees establish their service networks as quickly as possible."  (In fact, the FCC gives PCS carriers ten years to cover 2/3's of the population in the license area.)

·            According to Policy No. 64, "the antennas for all three systems (Cellular, PCS and ESMR) function on a line of sight transmission."  (This is not true.  Cellular, PCS and ESMR are broadcast technologies, not line-of-sight technologies.)

·            According to Policy No. 64, "If federal standards are met, cities may not deny permits or leases on the ground that RF emissions are harmful to the environment or to the health of residents."

Leases for sites for personal wireless service facilities can be denied on the basis of RF emissions based on a U.S. Court of Appeals decision that recently decided this issue.

The District Court dealt with Policy No. 64 by finding that Policy No. 64 did not even exist when AT&T first applied to the City:

Therefore, the city cannot rely on Policy No. 64 as a basis of substantial evidence to support the findings because to do so would impose criteria on ATT's application not in place when ATT completed the application process.

Hiring Experts … The District Court spent considerable time on the subject of expert witnesses in wireless lawsuits.  The City of Carlsbad hired someone to testify that AT&T's method of seeking alternative sites was flawed. The Court had this to say about the City's expert:

In this case, even assuming (the expert) is a qualified expert in radiofrequency engineering, the city has failed to show by a preponderance of the evidence that (the expert's) conclusions in the tentative report and in his August 27, 2002 deposition are reliable … Consequently, the reliability of (his) conclusions are seriously compromised, and the court accords the conclusions virtually no weight at all.

As PlanWireless has stated many times in the past: local governments should not base approvals or denials on the grounds of radiofrequency engineering.  Every carrier is different, every model for simulating signal propagation is different and disagreements among experts do not lend support to any conclusion. 

The real issues are usually procedural in nature.  The real experts should be those who designed the local government's procedures, not those who take measurements.

First Decision by the U.S. District Court …  AT&T won its lawsuit on the following five issues:

·            Prohibition based on RF emissions.

·            Prohibition based on unreasonable discrimination among functionally equivalent services.

·            Lack of substantial evidence.

·            Lack of equal protection under the law.

·            Administrative mandamus (allowing the court to require the City of Carlsbad to approve AT&T's application).

The Judge deferred a decision on AT&T's claim that the City violated its civil rights.

Deferred Decision by the U.S. District Court…  The U.S. District Court Judged sided with AT&T on the claim that its civil rights were violated, thereby opening up the door to a money damages claim by AT&T. 

Prior to the Judge's determining the amount of damages due to AT&T, the City of Carlsbad agreed to settle the case with AT&T for $250,000 in 2004.  Art Navarro, a spokesman for AT&T, stated in the North Co. Times "There's a few remaining issues."

This Case is Not Over…   One of the planners for the City of Carlsbad indicated that:

·            There has been no final decision in this matter.

·            There was no "winner" and there was no "loser."  (This may be true with regard to amount of damages, since that amount was reached by settlement.)

·            The AT&T cell site at 7512 Cadencia will not be built.  Although the Judge's decision required the City to approve the Conditional Use Permit, it appears as if the house in question has been sold and that the new owners don't want the cell site on their home.

Because this is the first decision to be published on cell sites on single family homes, it undoubtedly will be used as "precedent" in future cases.  (District court decisions are not case law.  But in Section 704 of the Telecommunications Act cases, judges use past decisions of U.S. District Court cases because few decisions on this subject are available for guidance.)

More important, AT&T will probably apply for a permit for a different site nearby.  Interestingly enough, the site two doors away is owned by Cingular and Cingular will conclude its purchase of AT&T by the end of 2004.  That would leave Cingular (if the AT&T cell site is built) with two cell sites separated by a single house.  (Should the reader wonder why two closely spaced cell sites would be of any value, PlanWireless suggests that one could be "sold" to another carrier.  Unless the approval conditions the cell site to a specific set of frequencies, a carrier could sell the site to another carrier.)

There also are five other carriers in San Diego (six counting Next Wave) that may be following this case with interest.  Sprint is already seeking approval for a residential cell site elsewhere in Carlsbad, and is suing the City of Carlsbad over the right to use the right-of-way for pole-mounted cell sites.  In the future, there will need to be 80 feet between each carrier's cell sites, so there are many more applications to come.

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Kreines & Kreines, Inc.
58 Paseo Mirasol, Tiburon, CA 94920
Phone: (415) 435-9214
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