How to manage cell tower placement in your town
We at Idahoans for Safe Technology are helping Ada County Commissioners and other counties and cities of Idaho re-gain authority to regulate telecommunications and Broadband infrastructure. I want to share what we learned recently to help you avoid making the same mistakes we did.
One day you go to your mailbox or drive out of your neighborhood and see a notice that Verizon, AT&T, T-Mobile wants to put a Macro Cell Tower in a close proximity to your home, school or park that you enjoy. This is of great concern to you, so you take time away from work and your family to attend a public hearing. You push aside your fears of public speaking and stand up for a couple of minutes to express your concerns over the proposed tower. Your local City Council or County Commissions patiently listening to everyone's concerns and wrap up the the hearing by tell you, “There is nothing they can do, their hands are tied because federal laws and the Telecommunications Act of 1996. You need to take this to your federal Congressmen.” Does this scenario sound familiar? This happened to me back back in 2018.
So let's get started
First - We need to look at the Telecommunications Act of 1996 to figure out the law and identify what government agency is responsible for regulating the placement of Cell Towers.
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.
(i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government shall not prohibit
functionally equivalent services
personal wireless services
(ii) State or local government shall act on any request for place, construct, or modify personal wireless service facilities within a reasonable period of time
(iii) Decision by a State or local government 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 may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency 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.
Key points to remember:
It’s state and local governments responsibility to regulate the placement, construction, and modification of personal wireless facilities (Cell Towers). Cell Tower placement is handled at the local government level (City Council, County Commissioners, and Local Zoning Ordinances). Talk with your state’s federal congressmen is a waste of time & the wrong agency.
State and local governments regulations can not effectively prohibiting personal wireless service. Local regulations cannot be so restrictive that there's no wireless coverage available. At the end of the day there needs to be sufficient wireless coverage to make a phone call or send a text message. Basic wireless service can easily be achieved with lower 700 MHz frequency's that travel up to 50 miles. Most towns in the US today already have sufficient coverage and additional towers are not needed.
State or local governments cannot regulate personal wireless facilities (Cell Tower) placement based on environmental effects. This is ridiculous and out of date by 30 years, but it’s the law, so we need to work within the law. In my opinion we have to consider health & environment when finding appropriate locations for cell towers in our communities. We just can't pass zoning regulations or make ruling on conditional use permits based environmental or health effects.
State local governments must act on Cell Tower permit applications in a reasonable time period and if put all denied requests in writing supported by substantial evidence. The best form of substantial evidence is a field propagation study or drive test with RSSI readings in dBm for each frequency (see example below). Effective rulings should be based on gap in wireless phone & texting service, Co-location on existing tower, least intrusive means to fill any gaps in coverage (see example below).
Second - Let’s look at two personal wireless facility (Cell Tower) Conditional Use Permit applications for Ada County, ID. The first was unsuccessful and the second was a success.
Eagle, ID - Skyview Ln - CUP Application - 2018 (The Learning Opportunity)
Click the above link to open and read the Findings of Fact and Conclusion of Law and subsequent Federal Consent Judgment Order..
Scroll down to pages 14 & 15. You will find that the Ada County Commissioners made a good ruling that cited state and local codes; They didn’t mention Environmental Effects; They responded in writing and in a timely fashion to the applicant. Looks good, but…
We made one significant mistake in correctly regulating this tower application. The ruling did not address the applicants claim that Verizon had a Significant Gap in wireless coverage. We didn’t to challenge them validity of propagation study. The tower applicant sued Ada County in federal court claiming that there ruling was effectively prohibiting Verizon from filling its gap in coverage (see pages 19 & 20 of the pdf / page 3 & 4 of Consent Judgment Order). The Judge found in favor of the applicant and ordered the county to issue the permit.
It’s important to note that Zero $0 in damages or attorney fees were awarded to the applicant (see page 22 of pdf / page 6 of the judgment).
Continue to scroll down to page 28 of the PDF and you will find a computer generated “finger paint” propagation study that was the critical documentation for the judge to make his ruling. There were no actual site visit recordings that show RSSI levels and frequencies at the proposed site. After the court decision and prior to the cell tower being complete, I purchased an $800 meter and performed my own site survey, and there was not was not an actual significant gap in wireless coverage.
We learn from our mistakes and move on..
Star, ID - Floating Feather Rd - CUP Application - 2022 (Successful)
Click the above link to open and read the Findings of Fact and Conclusion of Law for the Star, ID cell tower application.
Scroll down to pages 5 & 6 you will see that we didn’t make the same mistake as before. We found an existing tower less that 2 miles away that AT&T can Co-locate there antanis on. The county also reviewed the challenged the computer generated “finger paint” propagation study provided by the applicant and ruled that the applicant failed to prove that they had a significant gap in coverage.
This is a good example of how local governments can successfully regulate cell towers in their community.
Third - What does a proper Drive Test, Propagation Study, or Site Survey look like? Here are some examples of each.
Drive Test Example - Requested by county and then performed by applicants engineer. No Gap in 700 Mhz frequency. That’s all that required by law.
Site Survey - Performed with a Wilson Pro Meter
Site Survey - Performed with Cell Phones and Video
Finally - Here’s the latest Cell Tower Appeal hearing in Bonner County, ID. The video is long, but it shows how to best defeat a cell tower in your community.
