There was much written and oral testimony that the applicant did not consider more <br />alternative sites or other specific alternative sites. The requirement to consider alternative <br />sites is an application requirement. There is no substantive standard in EC 9.5750(7) Standards <br />for Transmission Towers and Antennas that addresses how many alternative sites, types of <br />alternative sites, or that the selected site must be the least or most of anything. The Oregon <br />Court of Appeals has addressed a similar requirement to consider alternatives in Friends of the <br />Columbia Gorge v. Columbia River Gorge Comm'h, 218 Or App 232, 247-250 (2008). The <br />Friends case is not a perfect analogy-the standard at issue there required no practicable <br />alternative more consistent with the purposes and standards of a federal law, and the <br />regulation requiring the alternatives analysis implemented federal law. Here, the only <br />requirement is to conduct some alternatives analysis and the issue is purely one of local and <br />state law. Nevertheless, the Friends case is instructive because the claims are very similar. In <br />Friends, the petitioners argued that some of the alternatives that the commission rejected were <br />practicable and there were numerous alternatives that the commission did not consider at all. <br />The federal law aspect of Friends also does not make that case inapposite because here, federal <br />law does not allow consideration of some issues that might otherwise be the subject of local <br />regulation (and thus restricts some of the alternatives available). This decision mentioned 47 <br />USC § 332(c)(7)(B)(iv) above; that is just one example. Another example is 47 USC § 253(a) and <br />(b), which state: <br />(a) In general. No State or local statute or regulation, or other State or local legal <br />requirement, may prohibit or have the effect of prohibiting the ability of any <br />entity to provide any interstate or intrastate telecommunications service. <br />(b) State regulatory authority. Nothing in this section shall affect the ability of a <br />State to impose, on a competitively neutral basis and consistent with section 254 <br />of this title, requirements necessary to preserve and advance universal service, <br />protect the public safety and welfare, ensure the continued quality of <br />telecommunications services, and safeguard the rights of consumers. <br />Here, the applicant provided an analysis of the area for which it is trying to provide improved <br />service and where towers might be located to achieve that goal. It rejected some alternatives <br />as providing insufficient or lesser service to meet its goal and others because the sites were not <br />available because of size, unwilling owners, and other reasons. Several comments received <br />during and after the hearing also point out other sites that the applicant did not consider, or <br />sites where there are existing facilities in locations and configurations that the applicant <br />claimed would not be technologically feasible to meet its goal. An email from Beau Binder, July <br />13, 2011, shows multiple photos of transmission facilities collocated on existing light poles <br />adjacent to existing roads. At base, these comments argue that the applicant improperly <br />rejected alternatives as unfeasible and did not consider some alternatives at all. <br />In Friends, the Court of Appeals reviewed the statutory requirements for an alternatives <br />analysis under the Clean Water Act and under the National Environmental Policy Act (NEPA). <br />The court observed that case law interpreting those statutes concluded an agency did not need <br />Hearing Official Decision (PDT 10-2, CU 11-1) 30 <br />