CTIA, the wireless telecom industry lobby, petitioned the FCC back in July 2008 to rule as follows:

1. To set a 45 or 75-day “shot clock” on local action on certain wireless facility applications. If the deadline isn’t met, the local authority will have violated Sec. 332(c)(7)’s requirement that a locality act on the application within a reasonable period of time.
2. If a locality fails to act within the shot clock deadline, the wireless carrier’s application will be deemed granted. Alternatively, failure to meet the shot-clock deadline would establish a presumption in any Sec. 332(c)(7) litigation that the wireless carrier is entitled to an injunction ordering the locality to grant the application unless the locality can justify the delay.
3. To clarify that Sec. 332(c)(7) bars any local zoning decision that prevents a wireless carrier from offering service in an area where another wireless carrier is already providing service.
4. To rule that Sec. 253 preempts any local zoning or state laws that impose unique requirements on wireless applicants vis-à-vis other kinds of land use applicants, such as local or state laws that require all wireless siting applicants to
seek a variance.

Glendale Organized Against Cell Towers (GOACT) found out about this petition too late to submit a public comment (the period for public comments expired on September 29, 2008). The National League of Cities had warned its members in this September 2008 report about the issue and urged them to contact the FCC. Bloggers like this one who have followed the issue for awhile posted extensive background information and urged readers to look into the matter.

The legal adviser Glendale retained to provide expert counsel on cell tower siting is Jonathan Kramer, who assisted SCAN NATOA (California and Nevada Chapter of the National Association of Telecommunications Officers and Advisors) in drafting this paper in opposition to the CTIA petition. Among other points, it points out that

There is no reasonable doubt that that Congress intended that the normal, locally-based zoning process control for wireless siting. The lack of ambiguity in Congress’s intent makes it clear that the Commission has no legal authority to usurp the local process, and the timing associated with that local process.

The Commission is explicitly excluded by Congress from interceding in local zoning issues and that is exactly what the CTIA’s Petition would have the Commission now do.

GOACT followed her advice, and crafted a 10-point plan Friedman had outlined. The response from city council was gratifying. After each council member stated they would vote to impose a 45-day moratorium on installation of cell towers in order to study city regulatory options, they directed staff to consider how the city could adopt all the points in GOACT’s action plan.

Thanks to Laura Friedman, who knew GOACT could better protect Glendale neighborhoods by suggesting specific policies, these policies are going to be the starting point for a proposed wireless ordinance.

Here is the 10-point action plan:

1. A public study session with all relevant staff, including City Engineer and City Attorney, to educate the public about the towers and issues surrounding them.

10. That the City of Glendale pass a resolution condemning the portion of the California Public Utilities Code section 7901 which allows telecommunications companies to ignore local zoning codes and construct facilities along any public right-of-way, to be sent to Sacramento.

Neighbors: Don’t take those great lawn signs down! In fact, get others on your street to post signs on their lawns as well. This fight is not over. T-Mobile was poised to sue the city if a moratorium was enacted, but apparently the company was dissuaded by overwhelming negative publicity and attention. They aren’t going away, though, and neither are other cell carriers who are fighting over Glendale neighborhood market share.

GOACT will be in close contact with city staff as they develop policies and procedures during the moratorium – read my next post for details about those. T-Mobile is going to be in close contact as well. Stay tuned.

T-Mobile plans to install the first of many cell towers on Cumberland Road in the middle of our historic neighborhood. The first is planned to go up directly in front of 509 Cumberland Rd. The Glendale City Council will consider this issue, and hear input from city staff, T-Mobile, and concerned residents, at its next meeting

6 p.m. Wednesday, January 7, 2009

Glendale Organized Against Cell Towers (GOACT) and the Northwest Glendale Homeowners’ Association urges every resident to attend this meeting and show the city council and T-Mobile our opposition to the placement of cellular towers in Glendale residential neighborhoods.

GOACT has protest T-Shirts to wear to the meeting and signs available for lawns. The coalition is now organizing speakers to protest T-Mobile’s push into our residential neighborhoods.

Contact coalition members at www.getthecelloutofhere.com to participate!

Map and directions to city hall for the meeting: Glendale City Hall, Municipal Buildings, and Parking Structure

City Hall is at 613 E. Broadway, Glendale, CA 91206. Parking is available in the municipal parking garage – enter on the south side of Wilson Avenue between Isabel Avenue and Glendale Avenue. There is no charge for parking after 4 p.m.

Walk directly south out of the parking garage to the back of the City Hall building. There are three buildings in the municipal complex – the City Hall is at the intersection of Isabel Avenue and Broadway.

The city council will take up the matter at its next meeting, Wednesday, January 7, 2009. Get neighbors and friends in force to this meeting, or send letters or emails to Glendale council representatives. The applicant for a permit to construct a cellular tower at the corner of Pacific and Cumberland, T-Mobile, plans to have representatives at the meeting. Check out www.getthecelloutofhere.com for updates, and send a message from there if you want to participate.

Pasadena is fighting the same battle that Glendale residents just began against T-Mobile to oppose cellular towers in residential zones. A report by city planning staff on the city’s options is due to the Pasadena City Council in January 2009. Pacific Palisades fought to enforce its ordinance and won (apparently they hired outside legal representation); the editor heard (can someone confirm?) that La Canada fought and lost.

Oceanside, Windsor Hills, and Redlands, among other California cities, have also fought cellular tower placement, with varying success. As in Glendale, other communities’ residents are learning that both federal (Telecommunications Act of 1996) and state (California Public Utilities Commission) regulations make it impossible for municipalities to prohibit wireless equipment installation. However, cities should have the ability to dictate where such towers can be placed, and how they must blend in with the surrounding environment.

A great deal of time and effort is being spent by small groups of citizens in relatively small city council forums against much larger telecommunications companies with money to spend on legal representation. Rewriting the laws to give municipalities strong protection against invasive installations in residential zones is a one size fits most solution.

Two other such permits are currently in the “encroachment process,” meaning that the request goes to 12 city departments for comments, concerns and cross-checking. This process does not include a public hearing and preempts public objections, since the telecommunications companies requested installation on the city’s right-of-way.

The permits in process include an antenna near the intersection of Clement Street and Glenwood Road (near Hoover High School), and one in Camino San Rafael.

All permits, the two approved and the two in process, are currently on hold pending the city’s deliberations on how to proceed in the face of strong public opposition outside of the narrow permit process. The city attorney’s office plans to complete its research on the matter today, and will meet with representatives of T-Mobile on Monday.

For more information, check out this blog’s earlier posts on Cellular Antennae, and stay tuned!

Glendale, California resident John McMahon addressed the City Council this past Tuesday on the subject of the cellular telephone antenna T-Mobile proposed to install on the parkway in front of his house on Cumberland Road. McMahon referred to a recent communication from the city attorney’s office to local neighbors, stating to them that federal regulations effectively prevented the city from influencing the placement of cellular antennas.

Instead of allowing telecommunications companies to dictate to us, McMahon said, city staff and council members should take a strong stand, show leadership, and stand up for the community. His comments can be heard at the 4 hour, 16 minute mark on this archived video of the Tuesday, December 9, 2008 Glendale City Council meeting.

Thank you, John McMahon, both for your exhortation to the city, and for the patience and interest you showed during the 4 hours and 15 minutes preceding your time at the podium!

The Glendale News Press today reported on the plans of newly organized Glendale Organized Against Cell Towers (GO ACT), and featured a photo of the banner McMahon placed across the front of his house – check out the link in the Paperweight archives section for December 12, 2008.

He finally asked around and found out that permits were being issued by the City Engineer’s office instead of by the Planning Department.

This was after he explained that Glendale’s zoning code requires a conditional use permit for wireless telecommunications equipment installation. That is, if the installation is applied for through the Planning Department for any residential zone in the city. The relevant section of the code is here on page 5 of the .pdf file.

A conditional use permit requires a public hearing, which is indicated by the “C” in the table on page 5.

However, a permit issued by the City Engineer’s Office, for installation of equipment on city property (parkways are city property), requires no public hearing and presumably very little notice. I haven’t heard back from the City Engineer’s Office yet, so I can’t explain their procedures.

What seems clear from explanations already provided is that both T-Mobile and the city are defining parkways as separate from their surrounding residential zones, in order to avoid going through the Planning Department process and holding a public hearing.

The zoning map of Glendale does not show parkway/city property separately from the surrounding R1 and R1R zones near Cumberland Road. T-Mobile and any city staff who have directed cellular antenna applications to the City Engineer’s Office are maneuvering against the straightforward intent of Glendale’s municipal code.

During the neighborhood meeting, I heard that federal law prohibited any protest of cellular antenna installation on the basis of possible health effects. I’ve since searched for the background on this matter and found it on a central New Jersey blog dedicated to blocking a T-Mobile antenna in its residential neighborhood. From Mobile Impact:

Among other things, Section 332(c)(7) provides that
“[n]o 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 [FCC’s] regulations concerning such emissions.” The full text of Section 332(c)(7) is set forth in Appendix C.

There is much more text in the document, but I want to point out the two bold sections. The second passage basically says that as long as a transmitter falls below FCC safety limits, no state or local government may challenge an installation on the basis of environmental effects. This is the portion of the FCA that corporations use to push installations through and is the provision that our local government is hiding behind. However, the first statement says that the state and local authority over decisions regarding placement, construction and modification of wireless transmitters is preserved. This is the check and balance system at work.

This effectively shuts out any community protest to local governments citing possible health effects from cellular antenna radiation. The post continues:

According to Common Cause, a nonprofit advocacy organization:

“Since 1997, just eight of the country’s largest and most powerful media and telecommunications companies, their corporate parents, and three of their trade groups, have spent more than $400 million on political contributions and lobbying in Washington, according to an analysis of federal records. All this investment once again gives radio and television broadcasters, telephone companies, long-distance providers, cable systems and Internet companies a huge advantage over average citizens.”

None of this prevents a local government challenge to the placement of antennas. The deck is stacked against the local citizens and their representatives, but it is not the sure thing that the bluster of the telecom corporations or their legal representation would have you believe.

In fact, we were told that many municipalities don’t challenge telecom corporation requests because they believe they will be sued. Just recently, however, the Ninth Circuit Court of Appeals ruled in favor of the City of San Diego, who lost a lower court suit Sprint filed against it for restricting construction of its antennas. More from the Coalition to Regulate Antennae Siting:

The Ninth U.S. Circuit Court of Appeals in San Francisco upheld San Diego
County’s limits on the placement, size and design of towers and poles that
are needed for companies to provide cell phone service and wireless Internet
connections. The court also voted 11-0 to discard a standard it had
established in 2001 that barred local governments from adopting any
restrictions that “may have the effect of prohibiting” wireless services.

Federal courts in the nine-state circuit have relied on the 2001 ruling to
overturn restrictions on telecommunications structures in several
communities, including San Francisco and Berkeley. The court said Thursday
that it had misinterpreted federal law when it issued the earlier ruling,
and that local governments can regulate wireless towers and poles as long as
they don’t actually prohibit wireless service within their borders or create
a “significant gap in service coverage.”

Best wishes to our coalition, which is benefiting from the documented experiences of local activitists throughout the nation and from the guidance established by the Ninth Circuit Court of Appeal. If you want that portion of the Federal Communications Act of 1996 overturned, write your representative in Congress, as the blogger at Mobile Impact urged.