PlanWireless: planning issues concerning wireless, PCS, cellular towers, antennas, etc.

Thanks to cell phones, we don’t need landlines. Or do we? Every call or connection made to a cell site must connect to the Public Switched Telephone Network (PSTN). The connection is called “backhaul” and it’s usually made by T-1, fiber or some other telco landline. A cell phone message cannot reach its destination without going through the PSTN. City and County ordinances should regulate backhaul as part of the personal wireless service facility.

Backhaul is becoming Problem No. 1 at the cell site. The telephone companies charge a lot for it and, as they lose business to wireless, they are increasing backhaul charges to the carriers. Consequently carriers are finding ways to bypass the landline backhaul connection. Figure 1 shows one method of “bypassing” using microwave relays.

Figure 1: An old style backhaul solution for avoiding landline to the site with six high frequency microwave dishes sending, or more likely receiving, backhaul from other cell sites.

But that isn’t the real problem with backhaul: It’s an anchor on the speed and capacity of the cell site. During peak usage, data-consuming devices must still wait in line for a backhaul connection, and that leads to congestion. As smart phones increase data demands, the backhaul connection can’t keep up. Call failures, whether you call it “dropped” or “blocked,” are becoming the result of network congestion. The point of congestion, just like a freeway, is at the cell site, which is an interchange.

Devices like the iPod4 or Droid X are like Maseratis or Lamborghinis. They may go fast in the air path between device and cell site, but once the interconnection via backhaul is attempted, signals slow down and even stop. It’s a problem you shouldn’t worry about because only the carriers can fix it. Their answer: sell more data-gobbling devices. Wireless traffic, like peak hour traffic, will take care of itself, so they say.

We are reaching capacity on our wireless networks. The gadgets we use have caused such a dramatic surge in mobile data that it is creating a bottleneck in the infrastructure needed to carry the traffic.

Wouldn’t it be ironic if we used “Level of Service” as an approval standard rather than “coverage?”

Carriers have always used extremely fast microwave dishes for backhaul in rural areas where landlines were too far removed to extend. But high frequency microwave requires line-of-sight as well as tower heights not acceptable in metropolitan areas. Regulation of backhaul may involve more than a dish on a pole.

Enter Broadband

Mandatory interconnection between personal wireless service facilities and the Public Switched Telephone Network is federal statutory law. But that does not mean that a personal wireless service, also defined and licensed by federal law, can’t use another type of service to get from the cell site to the landline switching station, and that is what one carrier is betting on. So when a Broadband Radio Service (BRS) comes to the counter in your city or county, and states that it’s part of XYZ, a personal wireless service carrier … check it out.

Figure 2 is a photograph of a BRS facility installed on the roof, probably without local government permits. It happens everywhere and, if there isn’t clear guidance in the local ordinance, it will continue at an increasing rate. The problem with bootlegging these BRS sites is: if an install doesn’t need a permit, why follow zoning or building regulations at all?

Figure 2: Broadband installed on a roof without permits. The dish points to somewhere outside the city and therefore is part of a larger network of BRS facilities. At every site, the BRS facility is tied to a personal wireless service facility, thereby providing faster backhaul. A permit is needed because this is part of the personal wireless service facility it is tied to.

As backhaul facilities are installed (tacitly or with permission) at existing cell sites, it’s a good idea to permit them as a modification to the existing cell site. Each time the weight-dominant install in Figure 3 is added, there are new load calculations to be made. This roof already has three permitted personal wireless service facilities on it, not to mention one or two more with no permits.

Figure 3: One indication that the BRS facility in Figure 2 has no building permit is its method of attachment (or non-attachment) to the roof. Landlords don’t like their roofs punctured, so why not four cinder blocks holding down the base plate? One reason a building inspector might not like it is that any visitor to the roof could just lift the cinder blocks aside. So much for high technology.

Your Ordinance Should Regulate Broadband

We always tell our clients to limit their ordinances to regulating personal wireless service facilities. A Broadband Radio Service (including Over-The-Air technologies) facility should require a building permit only. However, when the BRS provides backhaul for a personal wireless service facility, then there are concerns of visual impacts and safety issues that must be reviewed under the wireless ordinance.

CTIA Sues San Francisco Over RFR Labeling Ordinance

On July 23, 2010, CTIA – the Wireless Association sued the City and County of San Francisco in the San Francisco Division of the Federal District Court of Northern California. There are three counts to the lawsuit:

1. In passing an ordinance dealing with Radio Frequency Radiation (RFR), San Francisco allegedly violated the supremacy of the federal government in the well-delineated field of regulating handset emissions.

2. San Francisco has allegedly created a conflict between federal law and the new ordinance. Supremacy once again dictates that federal law overrules conflicting local law.

3. The Telecommunications Act of 1996 prohibits any state or local government from blocking entry of “any commercial mobile service.”[1]

CTIA wants the court to enjoin San Francisco from enforcing the new ordinance as well as to award CTIA attorney’s fees and court costs.

The Players: San Francisco and CTIA

Fascinating politicians come from San Francisco, including Nancy Pelosi, Willie Brown and the standard-bearer of Ordinance Number 155-10: Mayor Gavin Newsom.

CTIA is no longer simply a lobbying power. CTIA is a constant presence at the FCC and, though the FCC and CTIA sometimes disagree, CTIA drives the FCC (and President Obama) agenda with a blizzard of “facts.” It has long been known that federal regulatory agencies (e.g., the Interstate Commerce Commission) soon become advocates for those they should regulate.

No one has accused the FCC for being the voice of the broadcast and telecommunications industry, but CTIA has broad influence over FCC policy.

The Ordinance (Number 155-10)

San Francisco intends to require “cell phone disclosure,” primarily about SAR (Specific Absorption Rate) of radio frequency radiation (RFR) for all phones marketed, distributed and sold (or leased) in San Francisco. SAR is defined and tested by the FCC, and no cell phone is allowed an SAR above 1.6 watts per kilogram per human body mass. (For those who want detail on such things, PlanWireless recommends the FCC Guidelines, which are actually NEPA [National Environmental Policy Act] regulations. The Telecommunications Act only mandates that the FCC study emissions and set limits; the actual numbers are considered and passed by the five-person FCC. The Guidelines are actually two volumes: the first in the nature of a draft and the second in the form of revisions in response to petitioners.)

Because different handsets have varying SARs, San Francisco believes that the buying (and leasing) public needs to know each phone’s SAR. SARs are a matter of FCC record, if you can obtain them, and they vary per handset from a low of 0.2 watts per kilogram to almost the limit of 1.6 watts per kilogram. The Ordinance requires labeling of each handset's respective SAR and a posting of a comparison by make, model, price and SAR.

Retailers are expected to get their SAR data from manufacturers. There are two kinds of retailers: formula retailers (chain stores) and individual stores. The two types of retailers have different deadlines, but, for individual stores, displays and labels must be in place by February 2012. The City and County of San Francisco is still developing forms and templates for the retailers to follow.

Non-compliance is not to be considered a misdemeanor, but rather subject to an administrative fine for each occurrence. An occurrence of non-compliance occurs with the sale or lease of each handset absent the required SAR data.

The Complaint

The overall concern of CTIA is that the new ordinance will dampen interest in wireless and therefore deter purchases.

CTIA believes that SAR is regulated by the federal government and not subject to local legislation. Further, CTIA believes that San Francisco bases its ordinance on the belief that the FCC-determined SAR limit is “not ‘safe enough’.” While Ordinance Number 155-10 does not make such a statement, the resolution of a previously convened Policy Committee of the San Francisco Commission on the Environment found, among other things:

WHEREAS, Cell phone radiation levels accepted by the FCC do not take into account potential increased vulnerabilities of children nor the cumulative effects of long-term use and do not provide sufficient protection in determining a maximum allowable SAR value of 1.6 W/Kg for the human head and brain;

CTIA faults San Francisco on many fronts, but the organization seems particularly upset that Mayor Gavin Newsom issued a press release the day the proposed ordinance was presented to the Board of Supervisors. In that press release, Newsom contends:

In addition to protecting the consumers’ right to know, this legislation will encourage telephone manufacturers to redesign their devices to function at lower radiation levels.

The CTIA lawsuit also notes that Newsom “hopes and expects that ‘other cities will follow’” and also Newsom claims that “this step will allow the city to take a lead role in the U.S. in promoting labeling for cell phones at the point of purchase.”

It is clear to CTIA that Mayor Newsom[2] has a wireless agenda that should be stopped on the steps of the courthouse.

Why is PlanWireless Even Interested in CTIA v. San Francisco?

PlanWireless has always felt that people and local governments are not paying enough attention to the pervasiveness of cell sites and signals in our environment. Anything that heightens awareness is a good thing, even if the CTIA prevails.

But what if San Francisco prevails? Many cities and counties will want to look at Ordinance 155-10 as a model. Here, the CTIA has made a strategic miscalculation:

Every city and county will copy the San Francisco ordinance, at very little cost and the benefit of lots of goodwill to the local government.

In the old politics, people like Obama or Steve Largent would make a lot of calls before making a political move. In the new politics, Newsom does his own homework, puts his own foot in his own mouth and then hops on one leg to his goal.

[1] Federal statutes have used two terms, “commercial mobile service” and “commercial mobile radio service,” for the same thing. One sure thing is that they both are classified as “personal wireless services,” a much larger category.

[2] Gavin Newsom is the Democratic candidate for Lieutenant Governor of California and is considered to be the leading candidate.

Don’t Speak of Coverage & Significant Gaps

Kreines & Kreines, Inc. suggests to its local government clients that using words like “coverage” and “significant gaps” is a waste of their time. The reason is that these terms are defined by the carriers for the benefit of the carriers. Cities and counties that use these terms are unable to define them but, if those are the words the carriers use, they must be right, right?

Radio Frequency Propagation Plots

Figure 1: What some observers call a “coverage map” is really a RF propagation map. The light (actually orange and yellow) areas are service areas around the 3-sector cell sites. The darker areas between service areas are what the carrier calls “significant gaps.” Theoretically, a call received while driving in a light colored area will be dropped when the vehicle crosses a significant gap. Also, there is a higher potential for “No Service” to appear on your cell phone screen while in a significant gap.

Figure 1 shows what some people call a “coverage” map. They assume that any geographic area that is not in the light (actually orange or yellow) blobs is not “covered” by the carrier. Any space between one blob and another is what the carrier calls a “significant gap.” Two recent lawsuits on the issue of “significant gaps” have been decided. The result of these lawsuits is that:

If a local government denies an application for a proposed cell site on the basis of alternative sites (that the local government prefers) and the local government can’t show that the alternative sites fill the same significant gap claimed by the carrier, and the alternative sites aren’t available for lease and construction, the denial is rejected by the court and the carrier’s proposal must be approved.

First, of all, unless your community owns or hires the same propagation model, the carriers may successfully challenge your community’s expert. Second, who sets the parameters on which colors are “in coverage” and which are “out of coverage?”[1]

The RF propagation plot is not modeled before the site is selected by the carrier; it is not a search or planning tool. The plot is prepared after the site is selected … it is a testing tool that has no business in a local government public hearing. Text Box:

Yet, many cities and counties use these plots as “proof” that coverage is provided and that the significant gap is filled.

Kreines & Kreines, Inc. advises: avoid using RF propagation as a measure of anything other than the applicant’s intentions.

Filling “Significant Gaps”

Figure 2: The area in the center of the diagram is the proposed service area for a new cell site. Presumably, the new cell site fills a significant gap between the existing cell site above and the existing cell site below. But what about the other significant gaps?

In the future, the size of the service area will be reduced. Then the significant gaps will be between the smallest (orange) blobs.

Anyone who believes that Figure 2 displays the closure of a significant gap is due for a rude awakening. Yes, the light areas connect in the middle of the plot. But who decides that a light colored area equals “coverage” and a dark area does not?

And what does the future hold for this method of “closing a significant gap?” The carrier in question may be modeling its 2007 bandwidth only. Today, in 2010, the same carrier has doubled its bandwidth by purchasing spectrum from the FCC (see article elsewhere in this issue). What happens to the size of the “blobs” when the doubled bandwidth is considered? Your guess:

The last answer is correct. The “closure of a significant gap” will actually be nullified in the future by the appearance of smaller blobs, none connecting to each other.

Conclusion

Kreines & Kreines, Inc. is not a firm of RF engineers or a law firm. We are wireless planners who have witnessed this trend for 15 years:

The only answer to this downward spiral of local government helplessness is not to base any approval or denial on RF propagation. There are better ways for cities and counties to make decisions on wireless applications. Kreines & Kreines, Inc. is helping cities and counties find those better ways.Ć

[1] In figure 1, the light areas are above the -76 dBm, a very strong signal. This particular carrier has used -84 dBm as its standard in a successful lawsuit. The higher number is a weaker signal because it’s a negative number. So which is the “coverage” threshold, -76 dBm of – 84 dBm?

School Boards & School Districts are Important Clients, But Here’s What They Need to Know

This is an era of fiscal realities, so Kreines & Kreines, Inc. is not surprised when we are asked by a school board to review a lease for a cell site. We are looking at three sites now and are expecting a fourth. Here are some things our school clients find out when we consult to them.

Parents Don’t Like Cell Sites at Schools

It is a fact that some parents believe that leasing land on school property presents radio frequency radiation (RFR) impacts on their children. Hundreds of hours are spent in school board meetings on discussion of “health impacts,” “Specific Absorption Rate” and “Maximum Permitted Exposure.” Then someone may say:

It doesn’t matter what the parents think, the federal government limits our ability to control RFR.

Local Governments in Their Zoning Authority are Limited in Controlling RFR, But No Entity, Including School Boards & School Districts, is Limited in its Ability to Control RFR by Lease

This issue has been adjudicated in the Second District of the Federal Appeals Court. If a School Board leases space for a cell site that sets a limit on RFR and has a proper lease, the RFR clause of the lease is controlling. The Telecommunications Act of 1996 does not interfere with setting limits on RFR in a lease.

Some school boards and school districts are so eager to hear from the public, they will consider a prospective lease at a public hearing without first agreeing on a lease rate with the wireless carrier. The reason may be obvious: if the school negotiates better terms with the carrier, it appears that the board or district is committed to going ahead with the lease. It is important for all parties to agree that the lease is an undecided contract until public testimony is heard. Once public opposition is satisfied, there is so much a sigh of relief that rent negotiations take a back seat to executing the lease as is, low rent and all.

Here’s what we think a school board or school district should do before sending a proposed lease for review at a public hearing: send the proposed lease to a consultant before exposing the lease to public scrutiny.

If Kreines & Kreines, Inc. is the consultant and the lease rate is too low, Kreines & Kreines, Inc. will suggest a fairer lease rate.Ć

Who is Elena Kagan & What Does She Mean for Wireless?

Elena Kagan was U.S. Solicitor General before President Obama nominated her to the U.S. Supreme Court. When Sprint v. San Diego County was reversed by an 11- judge decision (en banc) of the U.S. Circuit Court of Appeals, the wireless industry complained. CTIA, the Wireless Association, pleaded for an appeal to the Supreme Court. The wireless industry argued that the Sprint decision was in conflict with other Circuit Court decisions and therefore left confusion for future U.S. Appeals Court decisions. It was up to the U.S. Solicitor General to file an appeal on the interpretation of the TCA and she elected not to do so.Ć

FCC Tells Local Governments They Only Have a Short Time to Approve or Deny a Cell Site Application

On November 18, 2009, the FCC issued a Declaratory Ruling known as “WT Docket No. 08-165.” Two mandates were declared:

· Any application to a local government for a co-location must be acted upon within 90 days.

· Any other application to a local government for a cell site must be acted upon within 150 days.

The penalty for a local government that doesn’t approve or deny a cell site application within these time frames is that the FCC will call it a “failure to act” under Section 332(c)(7) of the Telecommunications Act of 1996.

The reason behind this push on cities and counties is that wireless carriers have purchased a lot of spectrum from the FCC, and now they want to upgrade their cell sites with all that new bandwidth.

After years on the distant horizon, 4G networks are ready to move from the drawing board to the marketplace. One major provider has already launched 4G WiMAX service in select markets. Competitors have announced plans to debut LTE networks in major markets around the country.

FCC Commissioner Meredith Baker was a bit more direct on the impacts to landlords:

Our action today addresses one important aspect of network infrastructure deployment—the time it can take to build out wireless infrastructure--and will help facilitate the process of building or upgrading the towers that are necessary to support our wireless broadband.

Of course, water tanks and roof-tops are clearly not “towers” and offer a distinct advantage over monopoles and other structures: they are already built. Many carriers place their equipment on rooftops and water tanks without seeking local government zoning approval, which is a risk that landlords should be concerned about.

FCC Commissioner Robert McDowell rang the anti-regulatory bell, which carriers strongly support:

Today we are taking yet another positive deregulatory step: We are promoting deployment of broadband, and other emerging wireless services, by reducing the delays associated with the construction and improvement of wireless facilities.

But FCC Commissioner Mignon Clyburn nodded to local governments, while stressing that more infrastructure is needed to meet wireless industry demand:

On the one hand, states and localities have understandably expressed concern about ceding power over zoning decisions – determinations that are clearly within their purview. On the other hand, the Commission has a strong interest in ensuring the timely rollout of robust wireless networks throughout the country, especially in light of our statutory obligation to develop a national broadband plan.

Finally, Commissioner Michael Copps hinted at what is sure to follow this ruling:

Congress, in enacting Section 332 of the Communications Act, preserved this important zoning role that State and local authorities play. At the same time, in order to encourage the expansion of wireless networks nationwide, Congress directed that zoning decisions be made “within a reasonable period of time,” allowing court review for failure to act within that timeframe.

Kreines & Kreines, Inc. Helps a Citizen in Kentucky, the Planning Commission Benefits As Well

Figure 1: Prospective view from our client's backyard

Wireless-wise, things are different in Kentucky. Until 2002, all personal wireless service facility application approvals were made by the state Public Service Commission. Citizens would have to go hundreds of miles to attend a public hearing.

That all changed with a state law that mandates the procedure (but very little substance) of how personal wireless service facilities are reviewed at the local level. Kentucky Revised Statutes Sections 100.985 to 100.987 spell out how local planning commissions can approve or deny something called a “cellular antenna tower.” At the risk of sounding like a broken record, Kreines & Kreines, Inc. reminds its readers: they aren’t “towers.” They aren’t just for “antennas.” And “cellular” is only one personal wireless service; there is PCS and now there is AWS (Advance Wireless Services). A personal wireless service facility has five components: mount, equipment shelter or building, antennas, cables and compound. The law can’t just deal with one part of a personal wireless service facility, such as a “tower.” The toxics and flammables, for example, are in the shelters or buildings.

Not only was this amendment to the Kentucky Revised Statutes poorly drafted, it appears to Kreines & Kreines, Inc. to be the handiwork of the wireless industry with the following requirements:[1]

All information contained in the application and any updates, except for any map or other information that specifically identifies the proposed location of the cellular antenna tower then being reviewed, shall be deemed confidential and proprietary …

The local planning commission shall deny any public request for the inspection of this information …

Any person violating this subsection shall be guilty of official misconduct in the second degree as provided under KRS 522.030.

In other words, the public can’t access the substantial evidence for a mandated public hearing.

Fourteen years ago, Kreines & Kreines, Inc.’s client and his family built their dream home (pool in the rear yard of a two-acre lot). In December 2007, T-Mobile submitted an application for a guyed tower, with our client’s rear yard 200 feet from the “specifically identified” proposed location of the “cellular antenna tower.” While the central shaft of the 270-foot guyed tower was shown 200 feet away, no one would show our client that a guy anchor was proposed immediately adjacent to the homeowner’s lot line. If the guyed tower were built, our client would walk out his back door and be looking at Figure 1.

Kreines & Kreines, Inc. reviewed the three pieces of information given to Kreines & Kreines, Inc.’s client by the Planning Commission that included:

It was clear from the staff report that the very able staff felt very constrained by the pro-industry state law to undertake a detailed analysis.

· The application appears to have been revised after it was filed with the Planning Commission.

· The Planning Commission was considering two different versions of the same application with two different versions of the same document and Kreines & Kreines, Inc. recommended that the project should be denied.

· The Planning Commission did not give the homeowner all specific location points because the anchor points and equipment buildings (four in all) were not mapped.

· The Planning Commission should require that a draft Environmental Assessment (see Gulf Coast article) be submitted and should consider that document before making a decision on the project.

· The alternative sites considered by the application as alternatives were all within the Urban Service Area, which is to be annexed for urban development and inappropriate for a guyed tower.

· The proposed project is in conflict with the Comprehensive Plan. If the Planning Commission approves the project, they should also amend the Comprehensive Plan to eliminate the incompability.

· The Planning Commission could not approve the project because of the presence of sinkholes on the project site.

· A project of such extreme height and construction demands should not be approved with a 600-foot long dead-end sub-standard road (12-foot gravel travelway).

· Guyed towers can fall down, shower ice and debris on people and property below, shake in a seismic event (the area is in the high risk zone of the New Madrid earthquake fault), have been known to burn to the ground and are point sources of toxic materials.

· The proposed project has visual impacts that would be adverse, significant, and not capable of mitigation in the setting proposed.

· The application does not show the location of proposed utility poles up to and around our client’s property although the cellular antenna tower would require them and therefore they are part of the project.

· The Planning Commission should require the applicant to study alternative deployment strategies and alternative technologies. Without the submission of these other alternatives, the application should be denied.

Most interesting of all of the above is that the proposed project was clearly in conflict with the Planning Commission’s Comprehensive Plan. Fortunately, state law requires that:

Review the uniform application in light of its agreement with the comprehensive plan …

And a very good Comprehensive Plan it is. So why staff didn’t want to compare the proposed project to the Comprehensive Plan is a mystery to Kreines & Kreines, Inc. See Figure 2 for what we found.

Our client, the homeowner, was told by many friends that the proposed project was a done deal. Any opposition would be fruitless.

The homeowner submitted the report prepared by Kreines & Kreines, Inc. on our review of this application to the Planning Commission. The Planning Commission voted 7 to 0 to deny the application. The only venue that state law provides for an appeal of the Planning Commission decision is a court of competent jurisdiction.

As the T-Mobile attorney passed the homeowner after losing the vote, he said, “You know, Mr. ______, this is not over.” Just two months earlier, this attorney’s firm had filed a lawsuit against another, more rural, Planning Commission.

What should Kentucky Planning Commissions take away from this story? The state law for wireless is, in our opinion, flawed. Citizens cannot have a public hearing while being denied access to the substantial evidence in the application. Further, how can the Planning Commissions vote to deny a project if, under the federal Telecommunications Act, they need to have substantial evidence for the denial? How could the Commissioners consider the substantial evidence in public, under the glare of public scrutiny, if in fact it is proprietary? Won’t discussion of whether the applicant's submittals constitute substantial evidence be exposed to the public in violation of Kentucky Revised Statutes Section 100.987(3)?

In Kentucky, Kreines & Kreines, Inc. believes that the Wireless Master Plan concept we have developed (we are preparing one now in the neighboring State of Ohio) would end this problem abruptly. A Planning Commission could adopt a Wireless Master Plan, then incorporate the Wireless Master Plan into the Comprehensive Plan. Because Kentucky does not require zoning to be consistent with the Comprehensive Plan, it would not matter that the Planning Commission’s zoning ordinance has procedural language in it that is pro-wireless industry. On substantive matters, the Wireless Master Plan would be clear, concise and authoritative.

I am not sure this battle is over, but at least today I have won a small victory. And that victory I owe to you and all the hard work that you did for me. Again many thanks, words can never express my gratitude.

[1] Kentucky Revised Statutes, Section 100.987(3).

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This web site is designed to provide information about planning for personal wireless service facilities. It is provided with the understanding that PlanWireless and planwireless.com are not providing legal, planning or any other professional advice or services with this web site. Please contact Kreines & Kreines, Inc. if you would like to obtain professional planning services. If legal or other expert assistance is required, the services of a competent professional should be obtained.

A Cell Site Can Provide “Coverage” and Still be Impaired by Slow Backhaul. Does Your Community’s Ordinance Consider Backhaul?