Towers:  The Wrong Word & the Wrong Approach

Kreines & Kreines, Inc. keeps telling its clients to use precise terminology and to avoid the use of the term "towers" in ordinances, regulations, approvals and denials of personal wireless service facilities.

Local governments should use precise and appropriate language so that people will not have to infer what the local government means when it uses the term "tower" when they really mean "personal wireless service facility."  A personal wireless service facility can be mounted on a tower.  But the same personal wireless service facility can also be mounted on a structure, building, streetlight, telephone pole, etc.  Increasingly, carriers are favoring shorter mounts over towers, so why do we keep saying "towers?"

Don't forget the 1997 case, Western PCS II v. Santa Fe Zoning Authority, where several neighbors passed themselves off as knowledgeable and testified that they didn't want "towers." But, in finding for the carrier, the Judge noted that he had seen photosimulations of the proposed personal wireless service facility and that it wasn't a "tower" but rather antenna panels placed on the side of a water tank.

So please, don't call them "towers."  We don't need towers.  Every cell site in the future can be accomplished with something other than a "tower."

Coverage:  It's Not the Local Jurisdiction's Problem

It's the night of that dreaded public hearing, and the carrier's representative stands up and says "You must approve our application because we need the coverage."

Coverage is neither guaranteed by the FCC nor the Telecommunications Act.  The carrier tries to achieve coverage, but there's no assurance that coverage will provide service.

Coverage is not guaranteed by the carrier to the subscriber.  If you are shown a coverage map, it merely means that a signal may be available in that area.  But most dropped calls, interference, dead zones and "holes" occur in coverage areas, not outside them.

A person may be in a carrier's "coverage area" but not be able to get service on a handset.  There may be a capacity problem.  There could be interference.  There are many reasons why coverage does not mean that service will be available.

Service:  Many Court Cases are Based on Carrier's Claims of Poor Service

If coverage doesn't guarantee service, how can service be measured?

Not by the bars on a handset; those bars measure signal strength.  They're a close approximation of whether your phone will work or not, but they don't guarantee service.  (Carriers have assured Wall Street that they will build enough cell sites to provide five bars of signal strength ... everywhere it's demanded.)  Signal strength may be great, but capacity could still be a problem.

If 1,000 subscribers all had five bars on their handsets, but the one cell site that serves them can only accommodate 500 subscribers, then half of the demand won't have service.  (This happened in 1999 in New York City, where AT&T's demand far outstripped its capacity.)

The only way to determine a carrier's service is to try it with one of their handsets.  Characterizations of "adequate service," "reliable service" or "poor service" are meaningless without standards for what constitutes good service, and there are none.

Some courts have settled on a term called "significant gap" as the only determinant of whether service is being prohibited or not.

Least Intrusive Means

By November 1999, the decision by the U.S. Court of Appeals, Third Circuit, in APT Pittsburgh Limited Partnership v. Penn Township, Butler County of Pennsylvania immortalized the Willoth decision by laying down two requirements for carriers to prove prohibition of service:

First, the provider must show that its facility will fill an existing significant gap in the ability of remote users to access the national telephone network. 

Second, the provider applicant must also show that the manner in which it proposes to fill the significant gap in service is the least intrusive on the values that the denial sought to serve.

The requirement of the "least intrusive means" suggests alternatives.  How else could a local government know "least intrusive" unless other means were studied and compared?

Kreines & Kreines, Inc. has been recommending that alternatives be considered to its clients for several years.  But the carriers resist studying alternatives.  They may say "we invested several thousands of dollars in developing a candidate location.  How can we be required to invest more money in studying viable alternatives?"

Cost:  It May Be a Carrier's Foremost Concern, But It Isn't a Criterion for Approval or Denial

The introduction of alternatives into the evaluation of an application for a personal wireless service facility may raise objections from the wireless industry that "it costs too much."  Nowhere does the Telecommunications Act say that cost is a criterion for local government consideration.

PlanWireless believes that neither the Telecommunications Act, nor the U.S. Constitution, guarantees any wireless carrier the right to make a profit.

On the other hand, municipalities should be careful not to deprive an applicant, whether for a personal wireless service facility or for a subdivision, any economic use of the underlying land.  In the event a wireless carrier claims that a local government's requirements are confiscatory, such a claim must be accompanied by financial data.  If data regarding costs and revenues are not forthcoming, then that claim should be considered hollow.

Competition:  The Carriers Will Claim that Costs Incurred Due to Local Regulation Will Inhibit Competition

The underlying aim of the Telecommunications Act is to stimulate competition.  Carriers claim that, unless municipalities get out of their way, burdensome costs will inhibit their ability to compete with other carriers.

Two points refute this argument:  first, if the municipal regulations are applied evenly, then all carriers will be burdened evenly.  If a local government's  regulations encourage alternatives to towers, all carriers will be induced to develop less intrusive means than towers to deploy their services in that jurisdiction.  PlanWireless believes that, in order to succeed, competitive carriers will be the first to deploy less intrusive means.

Second, while shorter poles appear to be more expensive for the carrier in the short term, they are actually the means by which carriers will deploy in the long term.  By deploying short poles now, rather than later, the carriers will ultimately reduce permitting costs and time spent.  This will result in the short pole carriers actually capturing more customers, while their competitors (who may insist on "towers") end up arguing, complaining, and sometimes losing expensive lawsuits.

Boxes on Utility Poles: Do They Really Work?

Carriers who insist on "towers" often tell cities and counties that there are no alternatives to "towers."  PlanWireless knows better.  The shorter a cell site becomes, the less area it covers.  "Towers" are not desirable anywhere except in remote areas (See Significant Gaps).

Many carriers have begun to install small boxes on poles for ¼- to ½-mile service radii.  The only time it makes sense, carrier's claim, is when the call density is high enough to justify such small service areas.

But here's the future:  "calls" will be a small portion of a cell site's traffic.  Data will be the primary form of message and much more capacity will be needed for data.  More capacity needs will mean shorter sites that are close together.  The market will be concentrated in residential areas and there will be a cell site on every block of every neighborhood. 

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Kreines & Kreines, Inc.
58 Paseo Mirasol, Tiburon, CA 94920
Phone: (415) 435-9214
Fax: (415) 435-1522
e-mail: mail@planwireless.com