Copyright 2009 - The Center for Municipal Solutions 1 A Workshop for Non-Engineers Towers & Wireless Facilities Regulating the Siting, Construction & Modification

Copyright 2009 - The Center for Municipal Solutions

1

A Workshop for Non-Engineers

Towers & Wireless Facilities Regulating the Siting, Construction

& Modification Presented by

The Town of Wake Forest and The Center for Municipal Solutions (CMS)

Wake Forest, North Carolina

Contact Info. Office (919) 266-5990 Cell: (919) 622-5448 or (518) 573-8842

E-mail: [email protected] or [email protected]

Web Site: www.telecomsol.com

Representing and Assisting 600+ communities in 30 states

mailto:[email protected]


http://www.telecomsol.com/


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Outline• What’s Coming, Why and the Effect on the Community

• The Law and How to Use it as a Tool to create win-win situations (both State and Federal law)

• Minimizing the impact, while Maximizing the service

• How to Make Permitting Decisions ... and on What to Base them

• Debunking Misconceptions and Myths

• New Revenue Sources

• The Economics of the Situation


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Questionsto Keep in Mind

• What do you need to know to regulate towers and wireless facilities?

• Do you have a plan to assure new/more revenue, both tax and non-tax?

• Are you ‘forced’ to rely on the applicant’s word as regards what’s needed?

• Do applicants give you less intrusive alternatives?

• Do applicants give you solutions to residents concerns about RF Radiation?

• Is the applicant the only real expert involved in the application process?

• Do you know the right questions to ask for each issue? Do you know the right answer(s)? If not, how do you know if the answer is right? (Attorney’s Rule #1: Never ask a question, the answer to which you don’t already know.)

• Is your Planning Staff having difficulty with its workload? Do you have a plan to assure it’s alleviated and still deliver the services the residents expect?


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Putting the Issue in ContextThe Economics Involved

Typical or Average Revenue

Daily

AnnuallyAnnually

$2,500 - $3,000$2,500 - $3,000 Per carrierPer carrier / site/ site / day/ day

$800,000 - $1 million$800,000 - $1 million Per carrierPer carrier / site/ site / year/ year


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Towers & Wireless Facilities

Why Regulate the Issue ?________________

Safety

Visual/Aesthetics

Impact on Nature and Character


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3G and 4G Technology Deployment

Often Upgrades of Existing Facilities

Wireless Internet – High Speed DataMust be 99% reliable for services such as

Electronic Funds Transfers, Bill Payments, Telemedicine

Live (Streaming) VideoExtremely Bandwidth ‘Intensive’, requiring extremely large amounts of capacity from

facilities with limited capacity

Because of Because of What’s Coming What’s Coming TodayToday & Why? & Why?


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Part 1What’s Coming and Why


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The Industry’s Agenda and Goal• The industry’s (real) agenda: Eliminate

virtually all hardline communications service drops

Ultimately 1 site per carrier for every 50 living units (75 – 100 living units in rural areas)

• Why? Limited capacity sites vis-a-vis 4G services

• When? It’s already started


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• Cablevision Launches Mobile Portal • Excerpt from InformationWeek

April 27, 2009 07:02 PM By Marin Perez

• The move shows the increasing importance of the mobile space for the major cable providers, as they are facing stiff competition from one another, as well as from telecom offerings like AT&T's U-Verse and Verizon's FiOS. The holy grail of these providers is being able offer customers the "quadruple play," a bundled service of home phone, cell phone, home Internet, and cable TV.

• Companies like Comcast and Time Warner have invested hundreds of millions in Clearwire and will likely resell WiMax to satisfy their users' mobile needs. This 4G technology is currently being used to provide mobile data connections, but it does have enough bandwidth to provide both voice and video services.

• Cox will take a different approach to mobility, as it will offer its own cellular service with spectrum it purchased in a Federal Communications Commission auction. The cable company has indicated it will integrate mobile video services into its handsets to go along with voice services.

Proof of the Industry’s Agenda/Goal

http://www.informationweek.com/;jsessionid=ZNCIXOBLDXZCOQSNDLOSKH0CJUNN2JVN



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The Impact – Number of Sites per Carrier (Urban & Suburban)

1985 20 Mile Diameter

(9 watt Bag phones)1995 10 Mile Diameter

(6 watt phones)

2005 4 Miles

(3 watt phones)

2009 2 Miles or less

(6/10 of 1 watt phones)

2012 800 – 900 yards or less

(as little as 2/10 of 1 watt)


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Search Area Size (Determines Number of sites)


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Proposed Site


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Part 2The Law


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What the federal legislation says . . .

and this is all it says


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Section 704; Codified at 332(c) (47 U.S.C. 332(c))• PRESERVATION OF LOCAL ZONING AUTHORITY-• `(A) GENERAL AUTHORITY- Except as provided in this paragraph, nothing in this Act shall limit

or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.

• `(B) LIMITATIONS-• `(i) The regulation of the placement, construction, and modification of personal wireless service

facilities by any State or local government or instrumentality thereof--• `(I) shall not unreasonably discriminate among providers of functionally equivalent services;

and• `(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless

services.• `(ii) A State or local government or instrumentality thereof shall act on any request for

authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request.

• `(iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.

• `(iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions .

• `(v) Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief.


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State law

Article 19 of Chapter 160A - 400


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What local governments may regulate"§ 160A‑400.52 land use

public safety

zoning, including

aesthetics

landscaping

structural design

setbacks and fall zones

State and local building code requirements

May require proof that no existing or previously approved structure can reasonably be used to co-locate on

May require proof that that the proposed height is “necessary to provide the applicant's designed service”

For purposes of this Part, public safety shall not include requirements relating to radio frequency emissions of wireless facilities.”


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A local government must• Determination whether an application is complete or not within 45 days of

the receipt of the application; and

• Notify the applicant within 45 days if the application is not complete, identifying the deficiencies that, if cured, would constitute a complete application

• For co-locations entitled to a streamlined process, issue a written decision within 45 days of receiving a complete application; or

• For other applications, e.g. new towers, issue a written decision within a ‘reasonable’ period of time


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An Applicant must

• Submit a completed application

• Comply with any local ordinances concerning land use and zoning. • Comply with all applicable federal, State and local laws, rules and

regulations


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require information on or evaluate an applicant's business decisions about its designed service, customer demand for its service, or quality of its service

include requirements relating to radio frequency emissions of wireless facilities.” Note: Unless they local government owns the facility or the property, in which case it has a right to regulate the use of its property as a matter of contract and condition of the lease.

In NC A local government may not

Decision/Choice vs. ‘Necessary’ “Necessary” or “Need” means what is technologically required for the

equipment to function as designed by the manufacturer and that anything less will result in prohibiting or having the effect of prohibiting the provision of service as intended and described in the narrative of the application. Necessary does not mean what may be desired or preferred technically. Those things which are Necessary do not involve decisions, choices or options.


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If a tower is proposed, you may Require proof that no existing or previously approved structure can reasonably be used to co-locate on

Require proof that that the proposed height is “necessary to provide the applicant's designed service”

Require proof that only a tower will enable the provision of service, i.e. to the exclusion of all alternatives that are not technically or commercially impracticable, and

that it’s needed at the specific location; that no other location will work; and

that the height proposed is needed for technical reasons.

And that anything else will result in the prohibition of service or will have the effect of prohibiting service


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A local government may (continued)Establish Fall-zones for towers (Recommended to be 110% of the height)

Do all things necessary to “Protect the nature and character of the community”,

Require the least visually intrusive facility, i.e. with the minimum visual impact reasonably possible under the facts and circumstances

Require stealth or camouflaged facilities, including towers

Prohibit towers, especially in residential neighborhoods and visually sensitive areas

Establish maximum height limits

Require that any new towers be spaced to enable compliance with maximum height requirements

Require the provision of an ANSI Safety inspection report for an existing tower ( Major issue nowadays)

Require the remediation of substantive safety issues before allowing any other work to be performed on a tower


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• Require payment of an application fee (up to about $6,000 is defensible)• Require payment of the cost of expert assistance (up front, before the

application is submitted)• Require replenishment of the amount for expert assistance if the

application is amended/changed and such causes an increase in the cost• Require a Performance and Removal Bond/surety to i) assure

compliance with the ordinance; and ii) prevent the taxpayers having to pay for the removal if/when a tower is abandoned

• Require adequate insurance and that the community be named as an additional insured

• Require the community be indemnified, if located on publicly-owned property

• Require a balloon test for a new tower and that it be publicized• Establish an ‘incentive’ application process for using municipally-owned

or County- owned property• Establish required priorities of land used for towers

A local government may (continued)


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Recommended ProcessUsed by more than 600 communities in 30 states

• Applicant Approaches community • Community tells applicant to call consultant. Consultant handles the application from this

point, unless community staff wishes to be involved. • Applicant provides the application fee to the Community to pay for expert assistance. • Set up pre-application meeting and site visit, including applicant, consultant & municipal

representative, e.g. Planner, Code Enforcement Officer or Building Inspector. • Applicant submits application.• Consultant reviews application and requests changes or additional information from applicant,

as may be needed or required. • Consultant provides written recommendation regarding the grant of a Special Use Permit, with

conditions if appropriate, or denial if warranted and supported by the written record. • Public hearing scheduled, if required. • Community approves, approves with conditions, or denies Special Use Permit. • Consultant ensures completion of conditions of Permit and recommends issuance of Building

Permit when conditions are completed. • Community issues Building Permit. • Consultant reviews and inspects construction when complete to insure compliance with

Permit, and recommends issuance of Certificate of Compliance, Completion or Occupancy (as appropriate).

• Community issues Certificate of Compliance, Completion or Occupancy. • Applicant initiates service.


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Part 3Misconceptions

Debunking the Myths


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Do Not Treat Upgrades Lightly !!!

Issues - Towers Safety – Physical & Structural Issues (affects both workers and the general public)

Reliability – Emergency situations

- Grandfathered Facilities ‘Captures’ the facility and enables it to be brought under the ordinance Verify no unpermitted work or facilities

Require unpermitted work to be permitted - On other structures, e.g. buildings, billboards, utility poles RF Emissions (Radiation) – affects both workers and the public


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Co-Locations on buildings have no issues?Example of RF Radiation Safety Violation

RF Emissions/Radiation Exceeding FCC Limits


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A tower leg so corroded (from the inside) you can see right through a 3” hole in the leg. The company originally asserted it had been inspected and was found to be in good shape with no safety problems.

Safety Found during a Co-Location ANSI Inspection


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Another tower asserted as being safe and structurally sound after it was supposedly inspected.

The only thing holding up this leg is that it’s resting on the clamp.

Found during Co-Location ANSI Inspection Safety Issues/Violations


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SafetyThe most critical issue


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RF RADIATIONLocal governments are preempted from requiring

proof of compliance with the FCC’s RF Emissions standards, including on-site RF surveys (after each carrier attaches)

Misconception


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Proof of Not Being Preempted


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Co-Locations on buildings have no issues?Example of RF Radiation Safety Violation

RF Emissions/Radiation Exceeding FCC Limits


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Fact

It is commonplace to find towers 3 years old and older fail ANSI Safety Inspections


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Examples of Co-Location Related Safety Issues.

Towers that carriers wanted to attach to and asserted were

structurally safe and were willing to have their employees work on


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Another tower asserted as being safe and structurally sound after it was supposedly inspected.

The only thing holding up this leg is that it’s resting on the clamp.

Found during Co-Location ANSI Inspection Safety Issues/Violations


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A tower leg so corroded (from the inside) you can see right through a 3” hole in the leg. The company originally asserted it had been inspected and was found to be in good shape with no safety problems.

Co-LocationSafety Issues/Violations


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What Were They Thinking?

Decatur, Alabama

at Presbyterian Towers

The Company had actually grounded its facilities to the metal handrail of the

stairwell of the building they had

located on. ““People Don’t Make Good Fuses”People Don’t Make Good Fuses”


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Tower FailuresCommon Misconceptions & Beliefs

• Because Towers are designed by Professional Engineers they can be assumed to be safe

• Towers are designed so they will always collapse ‘on the site’

• Towers only collapse in high winds

• Towers create no risk for the public


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Structural SafetyGuyed Tower


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The industry has repeatedly asserted to local governments that guyed towers can’t collapse in their entirety; especially guyed towers


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Safety Issues/Violations

That’s the Police Chief’s car under the collapsed monopole that

came down in a mere 40 mph wind


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Structurally Flawed Design . . . Signed off on by a PE

Monopole FailuresSafety Issues/Violations


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Ooops . . . The wrong foundation for the type of

soils


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Monopoles don’t collapse in their entirety? Someone needs to tell that to this one.


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This tower came down in a 55 mph wind


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Stress factures in the footing of a tower caused by “explosive” damage from lightning strike to an improperly grounded tower, found during an ANSI inspection. This means it would come down in its entirety and not collapse on itself.


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The Effects of

Regulating Effectively versus

Ineffectively


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Before


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After, if unregulated


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Notorious Quotes


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“We’d never build a tower we don’t need”


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Nope, Never!!

Unneeded Spec Tower - No Carriers

All 4 carriers could have gone on this monopole


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Nope, Never . . . Much less on a Ridge line


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We always co-locate if there’s a structure available

Tower is actually no taller than the water tank

The Community gave up about $2 million in Non-Tax revenue


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Options/Alternatives to a tower


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Electric Transmission Tower


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Flagpole

Everything is inside the flagpole


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Light Standard


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Juniper


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Spruce


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MonopinesWhat were they thinking? Here’s how it’s

supposed to look


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Barn


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Replacement Farm Water Tank


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One way to prevent towers in residential neighborhoods

DAS

Can accommodate up to 8 carriers


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Part 4The Economics


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The Economics InvolvedTypical or Average Revenue

Daily

AnnuallyAnnually

$2,500 - $3,000$2,500 - $3,000 Per carrierPer carrier / site/ site / day/ day

$800,000 - $1 million$800,000 - $1 million Per carrierPer carrier / site/ site / year/ year


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Taxes

Typical cost/value per carrier

$300,000 - $500,000 per $300,000 - $500,000 per carriercarrier


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Supporting Information


71

• Cablevision Launches Mobile Portal • Excerpt from InformationWeek

April 27, 2009 07:02 PM By Marin Perez

• The move shows the increasing importance of the mobile space for the major cable providers, as they are facing stiff competition from one another, as well as from telecom offerings like AT&T's U-Verse and Verizon's FiOS. The holy grail of these providers is being able offer customers the "quadruple play," a bundled service of home phone, cell phone, home Internet, and cable TV.

• Companies like Comcast and Time Warner have invested hundreds of millions in Clearwire and will likely resell WiMax to satisfy their users' mobile needs. This 4G technology is currently being used to provide mobile data connections, but it does have enough bandwidth to provide both voice and video services.

• Cox will take a different approach to mobility, as it will offer its own cellular service with spectrum it purchased in a Federal Communications Commission auction. The cable company has indicated it will integrate mobile video services into its handsets to go along with voice services.

Proof of the Industry’s Agenda/Goal

http://www.informationweek.com/;jsessionid=ZNCIXOBLDXZCOQSNDLOSKH0CJUNN2JVN



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Industry Revenue – 2007$2.75 Billion pro-rata per State


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Growth of Industry RevenueIn Billions of Dollars


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Number of Cell Sites – 12/31/07

Documents

Copyright 2009 - The Center for Municipal Solutions 1 A Workshop for Non-Engineers Towers & Wireless Facilities Regulating the Siting, Construction & Modification