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HomeMy WebLinkAboutCity's third party review` Assisting more than 800 communities in 34 states for more than 2 Decades Specializing in Regulating Towers & Wireless Facilities The largest & most experienced organization of its kind in the nation 3113BC.WF,NC27587 ILLIARD TAKE ORESTORTHAROLINA E-Mail: Lmonroe8@nc.rr.com Office (91)9 266-5990 Mobile (518) 573-8842 Web Site: www.telecomsol.com Report Submitted April 16, 2015 COMMENTS RELATED TO THE FOLLOWING APPLICATION File #: CU 14-3 New Cingular Wireless –Crossfire Ministries Applicant : Lexcom Development on behalf of New Cingular Wireless PCS (AT&T) Requested : A new 75’ tall tower (monopine) located at 4060 West Amazon Drive, Eugene, Oregon Stated Purpose : To fill a gap in 4G LTE service and ‘improve’ all AT&T service in the area. Introductory Remarks Monroe Telecom Associates, LLC (dba CMS or The Center for Municipal Solutions) was retained by the City of Eugene (City) as its consultant to comment on the adequacy and usefulness of information submitted in support of permitting a new tower. This report is comprised of comments and explanations relatedto the adequacy, completeness, accuracy and ability to verify the material submitted by the applicant in support of its proposal to construct a 75’ tall monopine at 4060 West Amazon Dr. in Eugene. The codified authority for such is found in Section 9.5750(11), to wit: Application Review andFees.The city manager shall retain one or more consultants to verify the accuracy of statements made in connection with an applicationfor a building or land use permit for a telecommunications facility.. . (emphasis added) Before getting into the specific issues, it is noteworthy that in several respects the City’s regulations refer to subjective determinations that are to be made with respect to applications. In that context, terms such as “Suitability” and “impact” as used in the City’s regulations are subjective terms, to best be interpreted by City officials. CMS would not presume to supplant the City’s [sole] right to interpret its regulations, much less make subjective determinations. Rather, CMS’s job is essentially to enable the City to make informed decisions, including knowing the options available to which the City has a right to avail itself and/or require of an applicant and to place matters in context. Thus, this report does not address matters of opinion that are of a subjective nature. 1 Before delving intothe report, the following is intended to correct widely held misunderstandings and beliefs of many lay people that are at the heart of the issue of the siting of wireless facilities. It is best if the reader understands some of these basic issues related to wireless facilities, wireless serviceand wireless facilities’support structures. Understanding Some Basics Related to Wireless Service and the Siting of Wireless Facilities Line of Sight (vis-à-vis Height of the antennas) : Contrary to the often heard assertion, Cellular service is notLine-of-Site. If it were, the service would not work indoors or in a vehicle. RF signals can penetrate materials such as foliage and most structures, and in most instances can be propagated at sufficient (legally-permissible) power to do so. Allowing a New Support Structure/Tower : A community is only required by (federal) law to allow a new support structure(or a ‘substantial modification of an existing facility) to be built if i) there is a “substantial” gapin service, i.e. noservice, but not necessarily because of a lack of a particular type/level of service (e.g. 4G LTE); and ii) it can be reasonably demonstrated that there is no other way of to mitigate the size of the gap. In today’s world with the recently significantly increased proliferation of cell sites, especially into residential areas, more and more communities are prohibiting towers, per se, e.g. in residentially zoned areas, areas of visual sensitivity, and historic preservation and renaissance areas, and are requiring carriers to find alternatives to erecting new support structures, i.e. towers, to accomplish what the carrier wants to do with respect to providing services. Impact of filling a gap/solving service issues : Under federal law a community does not have to allow a carrier to fillgap in service (whether ‘substantial’ or otherwise) from a single facility. Nor does federal law require a community to allow a carrier to fill a gap in service (or solve any other issue) in the least costly or most efficient manner, e.g. using a singlefacility. In other words, under federal law cost is not required to be taken into account when permitting.The federal law is silent on (does not address) the issue of cost.It is not uncommon to require that a gap in service (or some level or type of service) to be served from 2 or more facilities, if doing so would minimize the [visual] impact or would otherwise be deemed to be in the public interest. Signal Strength : Signal Strength is measured as a logarithmic function. Thus, every 3dBm increase in signal strength doublesthe previous signal strength, and conversely each 3dBm decrease reduces the signal strength by half(i.e. 50%). Also, the lower the number the stronger the signal. Thus, for example, an increase in signal strength from -101dBm to - 85dBm results in a signal that is approximately 33 times as strong. New Towers :Anew tower is seldom a technical ‘necessity’ other than in rural areas where the facility is intended to cover a large area and there are no utility poles, silos, billboards, etc. to attach to. 2 Comments on the Information Provided Technical Need not proven, i.e. by clear, convincing and verifiable evidence . The application presumes that the intended service area will be covered from a single location/facility. Nothing inapplicable federal law says that a carrier must be allowed to fill a gap in service from a single facility. 1 Based on the information provided, the technical needfor a new 75’ tall support structure, to the exclusion of all reasonable alternatives, has not been demonstrated by clear, convincing and/or verifiable evidence. In other words, the applicant has not shown by clear, convincing and verifiable evidence that -there is no way to do what it wishes other than to build a 75’ tall new tower; or that -the selected location is the only location that would at least mitigate or reduce the size of the gap in 4G LTE service and improve the service overall as asserted. Relatedly, there is no way to verify the correctness, accuracy or veracity of what information has been proffered as evidence of the technical need for what is requested vis-à-vis the propagation maps submitted. Propagation maps can easily be manipulated (and all-too-often are) to show a pre-determined desired result or situation. Without the ‘modeling’ informationthat was used to generate the maps, i.e. the variables inputted into the software used, there simply is no way to verify the correctness, accuracy or veracity of the maps submitted. Attached as Exhibit 1 is an example of such a manipulated situation that occurred in the real world vis-à-vis an application, showing how easily propagation maps can be manipulated. Also, propagation maps are notthe only means of determining the technical need for a new facility, or from the Community’s perspective the best and least intrusive way to meet a technical need. Propagation maps are also, by their nature, predictivemodels and don’t necessarily reflect the actual real-world situation. Frequently the real-world situation differs substantially from what a ‘modeled’ depiction estimates and depicts the situation to be. It is common for both carriers and tower companies (of their own volition and for their own business purposes) to do ‘Drive Tests’ that do reflect the actual (signal strength/coverage) situationat any point in the [intended] service area, and from that to determine the extent and locations of a given situation. This can show the true size and extent of a gap in service, as well as the signal strength at any point within the driven area. For example, it may show that the fringes of an asserted gap can be, or already are, served from an adjacent site. Given the lack of clear, convincing and verifiable evidence related to the technical need for what has been proposed, the City maywant to consider requiring a ‘Drive Test’ to be done, supervised by a qualified individualto assure valid test results. The narrative of the ‘Coverage Justification’ submitted in this case implies a ‘weak’, unreliable and/or inconsistent signal in the subject area, i.e. one that should be improved. However, none of the propagation maps submitted contain or denote the ‘threshold’ (i.e. minimum needed) signal 1 “Need”in this context means what is technologically required for the provision of service (in any substantive portion of the intended service area) and for the user equipment to function as designed by the manufacturer. 3 strengths used when producing them. Thus, the implied ‘weak’ signal that needs to be improved, has not been clearly and convincingly demonstrated technically; only asserted. As submitted, the conclusions represented by the propagation maps are not able to be verified, meaning that, unless the City wishes to simply accept the applicant’s assertions and maps at face value, they are useless from a regulatory perspective. Since it is the technical need for what is requested that determines the location, type and height of the facility, it is difficult to determine definitively the type(s) and height of support structure(s) and the location(s) that would not work to enable the situation to be mitigated or improved and therefore what would work technically to resolve the situation. The propagation maps can be resubmitted and used if done correctly. (6)Application Requirements. (a)Collocation of Antennas. In addition to standard required application material, an applicant for collocation of antennas shall submit the following information; additional application material is required, as specified in paragraph (c) below, for applications requiring a site review or conditional use process. 2.Documentation demonstrating compliance with non-ionizing electromagnetic radiation (NIER) emissions standards as set forth by the Federal Communications Commission (FCC) particularly with respect to any habitable areas within the structure on which the antennas are co-locating on or in structures directly across from or adjacent to the antennas. Comment : The report written by Hatfield & Dawson dated January 2014 (Report) would appear to be accurate and the formulas and the approach used are consistent with accepted practice. The numbers arrived at as regards the percentages of the FCC’s thresholds established in OET Bulletin 65 are also not inconsistent with what onewould expect in a similar situation. However, it is not known that any of the assumptions such as the Effective Radiated Power (ERP), Antenna Gain and Suppression Angles stated in the report will reflect the real world operating situation after construction and activation. In that context it is important to note that Footnote 1 on page 2 of the Report expressly states that “. . . the data for the antennas specified by AT&T was unavailable . . .” and an assumption, albeit a conservative one, was used. There is nothing in the report that would indicate that it is not accurate or truthful and thus would appear to be reliable and we would recommend accepting it in compliance with the intent of this subsection. However, since RF emissions is normally one of the two issues the public is most concerned about(the other being visual intrusiveness), and since the report is predictiveas regards its conclusions, to determine actual real-world operating compliance with the FCC’s regulations set forth in OET 65, the City may wish to order an on-site post-construction RF survey to be conducted (under qualified supervision by the City). Such a requirement could be attached as a condition to the CUP. (b)Construction of Transmission Tower. In addition to standard required application material, an applicant for a transmission tower shall submit the following information; additional application material is required, as specified in paragraph (c) below, for applications requiring a site review or conditional use process: 2.Documentation that alternative sites within a radius of at least 2000 feet have been considered and have been determined to be technologically unfeasible or unavailable. For site reviews, alternative sites zoned E-1, E-2, I-2, and I-3 must be considered. For conditional use permitsalternative sites zoned PL, C-2, C-3, , 4 E-1, E-2, I-2, I-3 and S-WSmust be considered. Comment : Based on our understanding of the situation gleaned from the information provided, we can find no technicalreason why facilities in the public rights- of-way (PROW) could not be used to accommodate antennas and the associated equipment in order to significantly mitigate the asserted situation. 1)Utility Poles: The applicant’s reason for not attaching to utility poles is an asserted policy of EWEB prohibiting wireless facilities to be attached to utility poles that have live power attached. This is an extraordinarily unusual policy. In fact, in having reviewed more than 4,000 applications in more than 800 communities in 34 states over almost 2 decades, this is the first time we have encountered such a policy anywhere. It is suggested that the City ask what is so unusual about the situation in Eugene that it would warrant such a policy. We are also not aware of anyinstance where an injury or fatality, or even a loss of electrical service,was caused by attaching a wireless facility to utility poles. While there may have been such an instance somewhere that wasn’t reported, it would be so rare as to be considered an aberration or ananomaly. Since pole attachment agreements can and do normally contain [categorical] indemnificationsof the pole owner(s), we would recommend asking for a copy of the written policy prohibiting the use of any pole with live electrical wires attached andan explanation of the reasoning behind the policy. Perhaps working with EWEB would result in a change in its policy; especially if it resulted in a new incremental on-going revenue source. With the carrier industry having acknowledged the number of facilities that will be needed going forward, especially in residential neighborhoods, it will become extremely problematic to provide the services offered (and demanded by the public)in many (if not most) communities without extensive use of utility poles and light poles. In fact, knowing this, the FCC’s recent rulemaking expressly addresses this issue. 2)Existing Light Pole in ROW along Dillard & Fox Hollow Roads: The applicant asserts that limiting an extension of the height of a utility or light pole to 18’does not provide adequate overall height. As addressed previously, this assumes that the gap in 4G LTE service mustbe allowed to be filled from a singlefacility. This is simply not true. At the very least, the situation could be significantly mitigated and the relatively small areas remaining unserved asdenoted on Exhibit D.2 could be addressed in any of several ways, including but limited to the following. Designing/Engineering and/or (slightly) relocating planned adjacent facilities to serve the small fringe areas represented on Exhibit D.2 as being remaining unserved areasafter construction of the proposed facility; specifically i) along Hillyard St. in the northwest portion of the gap, ii) across the northern portion of the gap from Hilyard St. east to Onyx St.; and iii) the very southern-most portion of the overall gap th from approximately East 44Avenue and Pinecrest Dr. southeast to Garnet St. In the context of the overall gap these are relatively small ‘fringe’ areas and it would be difficult (virtually impossible) to imagine that there is not a way to serve them other than with the erection of a 75’ tall tower. It would simply require a little 5 bit of non-boilerplateor non-cookie-cutterengineering. For the sake of discussion, let’s assume that the propagation map provided and 2 labeled as Exhibit D.2 is accurate;and that it reflects a design maximizing the capabilityof a facility on the light pole listed as Alternate Site #1 (e.g. using Hi-Gain antennas and the maximum allowed Effective Radiated Power), it is virtually impossible for a 52’ foot height not to enable the entire intended area to be served if it were donein combination with another new facility, such as a substantially shorter monopole and/or attaching to another utility pole. 3)Kincaid City Park: One of the reasons put forth by the applicant for not locating a facility at Kincaid Park is the lack of a process of the City for leasing space to wireless carriers. That issue could easily be resolved and result in an efficient and profitable use of City-owned property. The other reason listed for not locating a facility at Kincaid Park is that “staff atthe pre-application meeting indicated that this location would not be ideal, as it would be more visually impactful than the site proposed”. There are several concernswith this response, including but not necessarily limited the following. “Ideal” is a virtually impossible standard to meet, as almost nothing related to planning and land use is “ideal”. Mitigating or minimizing the visual impact could be dealt with in several ways. These include, but are notlimited to, using a shortercamouflaged support structure, if a new support structure can be proven to truly be the only viable option, in combination with a pole-mounted facility elsewhere in the service area, if needed. It is likely that such a support structure, if camouflaged properly such as a 40’ –50’ tall well-donemonopine (or other species of tree), would have virtually no visual impact and be virtually indistinguishable from other existing trees. 4)Parker Elementary School: The reason stated by the applicant for not using this location is that “. . . the 4J School District is not interested in leasing space for wireless facilities on any of their properties.”. It is recommended that the City verify this policy decision by having the applicant obtain a letter signed by the Superintendent or the President of the School Board formally stating this policyand the reason for it. 5)Emerald Valley Assisted Living Residence: The response by the applicant as regards whytheEmerald Valley Assisted Living option was rejected was the “Property owners did not return our multiple calls regarding leases.”. 2 This is something that cannot be determined, i.e. verified, based on the information provided. See previous discussion related to Propagation Maps. 6 As a former industry executive, the author finds it difficult to understand why there was no in-person follow-up to the phone calls and why that response from the person charged with making contact was considered acceptable. If the applicant were truly serious about exploring and using this option, it surely would have done so and explained the benefits to the property owner(s) so they could at least have made informed decisions. The question also arises as to the number of attempts that were made to reach each property owner by phone, as the number of attempts is not stated.This raises the question of the reasonableness of the amount of effort that was put into exploring this option. Was due diligence truly done? Because of this, the response raises the bottom-line question as to just how seriously and genuinely this option was pursued. Conclusionre Compliance withSubsection 6(b)(2) : For any one or all of the reasons set forth above, it would appear that Subsection 6(b)(2) has not been complied with. 3.Evidence demonstrating collocation is impractical on existing tall buildings, light or utility poles, water towers, existing transmission towers, and existing tower facility sites for reasons of structural support capabilities, safety, available space, or failing to meet service coverage area needs . Comment : The applicant states, “There are no existing buildings of sufficient height that will meet AT&T’s coverage goals.” Again, this assumes the gap must be filled from a single facility, which is an erroneous assumption. It also presumes that the City must accommodate AT&T’s ‘goals’, as opposed to its‘technical needs’, which it does not if it so chooses. The applicant also states that “Existing light/utility poles in the search ringare of insufficient height to meet service needs at +/-30’ “. Refer to the previous discussion on this matter.Also, both the size and location of the search ring strongly indicate that a single-facility approach was the only option considered. There is no clear, convincing and verifiable evidence submitted in relation to this requirement.Specifically, none of the following has been demonstrated by clear, convincing and verifiable technical evidence. That in this instance,for technical reasons,the asserted gap must be filled from a single facility,to the exclusion of all reasonable alternatives; That the selected location is the only location or combination of locations,to the exclusion of all reasonable alternativelocations,that would enable the asserted gap to be filled; That there is no viable alternative to filling the asserted gap and improving overall coverage than by constructing a new tower; That the facility must be 75’ in height. 7 Collocation. New transmission towers shall be designed to accommodate collocation of additional providers: 2.New transmission towers of a height of at least 60 feet and no more than 80 feet shall be designed to accommodate collocation of a minimum of 1 additional provider either outright or through future modification to the tower. Comment :While there is sufficient vertical space for at least 1 additional array of antennas on the proposed 75’ monopole, the structural capability of the proposed tower to accommodate additional carriers’ facilities cannot be determined, as there was no structural analysis report provided.This is critical and no tower should ever be permitted without verification of the structural capability/capacity of it. L.S. (Rusty) Monroe 8 EXHIBITS 9 EXHIBIT 1 ‘MANIPULATED’ PROPAGATION MAP (Oops. Busted!) SS,SH,SSS,DC. AME ITEAME EIGHTAME IGNAL TRENGTHIFFERENTOVERAGE Original submittal showing large gaps at 120’ Later submittal, after an analysisshowed that the original map was ‘manipulated’ to try to prove that120’ would notfill a significant gap when trying to get a 199’ tower approved. Note: Large gaps ‘miraculously’ disappeared after analysis. This is the bottom-line or underlying issue in most applications for a new facility, as it determines i) the technicalneedfor a proposed new facility in the first place; ii) the need for the proposed location; and iii) the visualintrusiveness(e.g. the need for a tower versus a co-location and the needed heightof the tower). ‘Proof-of-TechnicalNeed’ The basic underlying issue is , which the 1996 Telecommunications Act allows a community to require proof of. The point of this is to demonstrate that without the modeling information (i.e. inputted variables) used to produce the maps, the map is uselessand should not be relied upon, as it can easily be manipulated to show a pre-determined (desired) outcome, as the original submittal above did. 10 EXHIBIT 2 Small Cell Node in Houston Note the lack of height 11 EXHIBIT 3 Streetlight-mounted Small Cell Note: This is well below the height of the surrounding trees 12 EXHIBIT 4 Macro Site in Portland, Oregon 13 Note: This is below the height of the surrounding trees EXHIBIT 5 Hercules, California 14 Note: This is below the height of the surrounding trees EXHIBIT 6 Well-DoneMonopine, including being ‘barked’ 15 Fort Ann, New York (in the Adirondack Park) Note: The antennas are not above the surrounding trees. Also, one has to almost touch the monopine to tell it’s not real. END OF REPORT 16