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2021-06-23; City Council; ; 5G Cellular Technology and Wireless Communication Facilities Workshop
CITY COUNCIL Staff Report CA Review CKM Meeting Date: June 23, 2021 To: Mayor and City Council From: Scott Chadwick, City Manager Staff Contact: Jason Haber, Intergovernmental Affairs Director Jason.haber@carlsbadca.gov, 760-434-2820 Subject: 5G Cellular Technology and Wireless Communication Facilities Workshop Districts: All Recommended Action Hold a public workshop to receive a presentation on 5G cellular technology and wireless communication facilities from Telecom Law Firm, the city's outside legal counsel for wireless infrastructure matters, and related public comment. Executive Summary City Council Policy No. 64, adopted on April 10, 2012 and amended on September 26, 2017, was issued to guide the public, applicants, boards and commissions, and staff in reviewing the placement, construction and modification of wireless communication facilities. However federal law significantly constrains the ability of municipal governments like the City of Carlsbad to oversee and regulate the installation of these facilities, as detailed below. Considering recent and pending changes in state and federal law and in cellular technology since the last update to City Council Policy No. 64, including the anticipated deployment of 5G cellular technology, staff are providing this workshop with a presentation from Telecom Law Firm, the city's outside legal counsel for wireless infrastructure matters, and to receive any related public comment. No direction from the City Council is needed at this time, since further changes in the law and existing legal challenges are pending. However, staff anticipates presenting proposed updates to City Council Policy No. 64 in late 2021 for public input and City Council consideration. Discussion 56 cellular technology deployment 5G stands for the fifth generation of technology standards for cellular wireless communication. It has the potential to deliver data much faster and provide greater capacity than previous technologies by using a broader range of frequencies than 4G technology. 5G networks will deploy more mid- and high-band frequencies, which experience comparatively higher signal loss over distance and from the obstructions of structures and topography. Because of these qualities, wireless providers are deploying more of what are known as "small cells" on streetlights, traffic signals and utility poles. These are closer together and cover a smaller area than the devices that were used to build-out 46 networks. Small cells are June 23, 2021 Item #1 Page 1 of 38 commonly associated with 5G wireless service but are not limited to that use. There are already about 175 small cells approved or deployed within the public right of way in Carlsbad and several more located on private property. All of the existing small cells in Carlsbad have been primarily installed to support 4G technologies. The city has not received any applications to permit the installation of the millimeter-wave band antennas used for 5G wireless communications. Staff expect an increase in applications to install such wireless communication facilities based on industry estimates. Under the federal Telecommunications Act of 1996, which was intended to foster the modernization of America's telecommunications infrastructure, cities may not: •Deny an application to install a wireless communication device because of perceived radio frequency health hazards •Prevent completion of a wireless network •Favor one wireless carrier over another •Deny an application without documentation of substantial evidence The Federal Communications Commission requires all wireless communication devices to comply with federal guidelines that limit human exposure to radio frequencies. These exposure guidelines have been endorsed by the Environmental Protection Agency and the Food and Drug Administration. Most wireless communication transmitting devices create maximum exposures that are only a small fraction of the limits set forth in the guidelines. The FCC addresses public health concerns over wireless devices in its "Consumer Guide on Wireless Devices and Health Concerns" (Exhibit 1). The Carlsbad City Council has a policy that governs the installation of all wireless communication facilities, whether large or small. This policy was adopted before recent changes in the law and technology. In addition to the limits the federal government had placed on what Carlsbad and other local governments can do to regulate communications equipment used for the previous generations of wireless networks, the FCC recently adopted new rules that constrain staff's ability to apply the current city policy to small cell applications. City Council Policy No. 64 The city regulates most land uses directly through the Carlsbad Municipal Code but takes a hybrid approach with respect to wireless communication facilities. Unlike many other land uses, these facilities are subject to an ever-changing landscape of federal and state laws that affect local zoning and permitting authority. Because of this environment, the city regulates wireless communication facilities through a separate policy document, City Council Policy No. 64 (Exhibit 2). This policy was authorized pursuant to Carlsbad Municipal Code Section 21.42.140(6)(165), which states: 165. Wireless Communication Facilities (WCFs): a. Shall comply with city council policy statement No. 64. An application for a WCF may be processed as a minor conditional use permit, pursuant to this chapter, if it is found to be consistent with the preferred location and the stealth design review and approval guidelines of city council policy statement No. 64. June 23, 2021 Item #1 Page 2 of 38 b. WCF conditional use permit applications that do not comply with the preferred location and the stealth design review and approval guidelines of city council policy statement No. 64 shall be processed as a conditional use permit by process 2. City Council Policy No. 64 provides several important benefits. Rather than amend the municipal code each time a change in law occurs, the city's approach has structural flexibility, which allows the city to react quickly and protect local interests. When local law is inconsistent with federal or state law, the local provisions are preempted and leave the city exposed without valid rules to enforce. Unlike a city ordinance, which generally requires at least two meetings and votes — one for introduction and one for adoption— and a 30-day waiting period before it becomes effective, City Council Policy No. 64 can be amended by a City Council resolution, which requires only a single meeting and vote and is effective immediately.' Additionally, local regulations for wireless communication facilities tend to require a level of detail better suited to a City Council policy. The comprehensive design, location, operation and procedural standards set forth in City Council Policy No. 64 are targeted specifically at wireless uses, which ensures the city follows the federal rules while giving the city the legal framework it needs for its limited oversight of this wireless infrastructure. City Council Policy No. 64 includes several components: purpose and background, review restrictions placed on the city by law, and the city's application procedures and guidelines. The policy's central purpose is to balance the city's desire to support access to high quality wireless services with the preservation of community aesthetics and public safety consistent with the law. Various federal and state laws restrict the city's ability to exercise its discretion over wireless communication facilities: The Telecommunications Act of 1996, detailed above, Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012, FCC regulations that implement these laws, the California Public Utilities Code and the California Government Code. Some of these laws impose procedural limits on the city's processing timelines or requirements for issuing decisions. These timelines are known as shot clocks. Others impose substantive limits that narrow or eliminate certain reasons to deny an application, such as the prohibition on considering the impacts of radio frequency emissions when regulating the placement of wireless communication facilities. In either case, the review guidelines in City Council Policy No. 64 were adopted to strike a balance between achieving compliance with applicable laws while also closely protecting the authority reserved to the city. Changes in federal regulations The city last updated City Council Policy No. 64 in 2017. Since then, there have been important changes in the law and in wireless carriers' strategies for deploying digital communication infrastructure. Primarily, the FCC adopted new regulations in anticipation of large-scale deployments of "small wireless facilities" (i.e., small cells) in the public right of ways. On September 27, 2018, the FCC released a Declaratory Ruling and Third Report and Order (FCC 18- 133) which interpreted key provisions in the Telecommunications Act. This order defined the 1 To introduce and adopt a non-urgency ordinance requires three affirmative votes of the City Council. To adopt or revise a City Council policy requires four affirmative votes of the City Council. June 23, 2021 Item #1 Page 3 of 38 size of small wireless facilities and restricted a local government's ability to prohibit facilities within its jurisdiction. The order also: 1.Limited the compensation local governments may receive from wireless providers for access to public rights-of-way and government-owned infrastructure 2.Significantly curtailed local aesthetic regulations over wireless facility placement and design 3.Required local governments to approve or deny permit applications within 60 days for installations proposed on existing structures and within 90 days for installations proposed on new structures Local governments across the country filed challenges to the FCC's 2018 order. On Aug. 12, 2020, the U.S. Ninth Circuit Court of Appeals reversed several of the FCC's limitations on local aesthetic regulations but upheld the compensation and timeline limitations. Local governments subsequently filed a petition before the U.S. Supreme Court to review the Ninth Circuit's decision as it pertains to the compensation issue. The Supreme Court has not yet decided whether to grant the petition and take the case. In addition to establishing those restrictions on small wireless facilities, the FCC recently amended rules related to Section 6409 modifications to existing wireless communication facilities. Under the Section 6409 rules, federal law mandates that local governments approve modifications that will not cause a substantial change. The FCC adopted a declaratory ruling on June 9, 2020 (FCC 20-75) and a report and order on Oct. 27, 2020, (FCC 20-153) that had the effect of expanding the categories of applications qualified for mandatory approval. These new rules are currently in effect, but are facing legal challenges. A coalition of local governments that includes the City of Carlsbad filed a petition asking the Ninth Circuit to review the declaratory ruling (Case No. 20-71765). A briefing on the merits of that petition is expected to be complete by the winter of 2021, with a decision likely by 2023. A separate coalition filed a petition asking the FCC to reconsider the report and order. There is no timetable for a decision on that petition's merits, and the option to seek judicial review may still be available. Recent or proposed changes to California law Several new state bills on wireless communication facilities have been introduced; one was recently adopted. On Sept. 29, 2020, Governor Newsom signed Assembly Bill No. 2421, which mandates expedited local approval for standby power generators at wireless towers. The law borrows from concepts in the FCC's rules, but creates entirely new processing requirements for local governments that only apply to this narrow class of applications. This law, codified as California Government Code Section 65850.75, is now effective. June 23, 2021 Item #1 Page 4 of 38 The California Legislature is currently considering at least four bills that would affect the city's authority over communications infrastructure: Senate Bill Nos. 378 and 556, and Assembly Bill Nos. 537 and 1166. •SB 378 would grant telecommunications providers the right to use what's called "micro trenching" in the right of way to deploy fiber-optic cables.2 •SB 556 would require local governments to make their street poles available for small cells and impose procedural requirements for granting access. The City of Carlsbad is on record as having opposed SB 556. •AB 537 would deem local construction permits approved if the local government failed to act on any wireless application within the applicable timeline •AB 1166 would do the same thing as AB 537 except that it would not apply to Section 6409 modifications that already have a deemed granted remedy under federal regulations. Taken together, significant changes in laws related to the city's authority to influence the wireless infrastructure deployments have already occurred or are likely to occur in the near future. However, the city is well-positioned to respond with any amendments to City Council Policy No. 64 that may be necessary. Fiscal Analysis None. Next Steps Staff and consultants will continue to monitor state and federal legislation and ongoing legal challenges related to wireless communication facilities. Staff anticipate presenting proposed updates to City Council Policy No. 64 in late 2021 for the public's and the City Council's consideration. Environmental Evaluation This action does not constitute a project within the meaning of the California Environmental Quality Act under California Public Resources Code Section 21065 in that it has no potential to cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment. Therefore, it does not require environmental review. Public Notification Public notice of this item was posted in keeping with the Ralph M. Brown Act and it was available for public viewing and review at least 72 hours before the scheduled meeting date. Exhibits 1.FCC Consumer Guide on Wireless Devices and Health Concerns 2.City Council Policy No. 64 — Wireless Communication Facilities 3.Correspondence received as of June 18, 2021 at 12:30 p.m. 2 Micro trenching is a means of installing fiber optic cables in a shallow and narrow trench of one to two inches wide that hold multiple conduits for fiber. June 23, 2021 Item #1 Page 5 of 38 Exhibit 1 Consumer Guide Wireless Devices and Health Concerns Many federal agencies have considered the important issue of determining safe levels of exposure to radiofrequency (RF) energy. In addition to the Federal Communications Commission, federal health and safety agencies such as the Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), the National Institute for Occupational Safety and Health (NIOSH) and the Occupational Safety and Health Administration (OSHA) have been actively involved in monitoring and investigating issues related to RF exposure. For example, the FDA has issued guidelines for safe RF emission levels from microwave ovens, has reviewed scientific literature of relevance to RF exposure (see fda.gov/media/135043/download), and continues to monitor exposure issues related to the use of certain RF devices such as cell phones. Likewise, NIOSH conducts investigations and health hazard assessments related to occupational RF exposure. Federal, state and local government agencies and other organizations have generally relied on RF exposure standards developed by expert non-governmental organizations such as the Institute of Electrical and Electronics Engineers (IEEE) and the National Council on Radiation Protection and Measurements (NCRP). Since 1996, the FCC has required that all wireless communications devices sold in the United States meet its minimum guidelines for safe human exposure to radiofrequency (RF) energy. The FCC's guidelines and rules regarding RF exposure are based upon standards developed by IEEE and NCRP and input from other federal agencies, such as those listed above. For wireless devices intended for use near or against the body (such as cell phones, tablets and other portable devices) operating at or below 6 GHz, these guidelines specify exposure limits in terms of Specific Absorption Rate (SAR). The SAR is a measure of the rate that RF energy is absorbed by the body. For exposure to RF energy from wireless devices, the allowable FCC SAR limit is 1.6 watts per kilogram (W/kg), as averaged over one gram of tissue. For wireless devices operating in the frequency range above 6 GHz, the guidelines specify power density as the relevant RF exposure limit. Power density is defined as an amount of RF power per unit area. Existing power density limits apply for whole-body exposure, but power density limits for localized exposure are being considered (see the Notice of Proposed Rulemaking in ET Docket No. 19-226, FCC 19-126). All wireless devices sold in the US go through a formal FCC approval process to ensure that they do not exceed the exposure limits when operating at the device's highest possible power level. If the FCC learns that a device does not conform with the test report upon which FCC approval is based — in essence, if the device in stores is not the device the FCC approved — the FCC can withdraw its approval and pursue enforcement action against the appropriate party. For more information on device testing and SAR for cell phones, go to fcc.gov/consumers/quides/soecific-absorption-rate-sar-cell- phones-what-it-means-you. Several US government agencies and international organizations work cooperatively to monitor research on the health effects of RF exposure. According to the FDA and the World Health Organization (WHO), among other organizations, to date, there is no consistent or credible scientific evidence of health problems caused by the exposure to radio frequency energy emitted by cell phones. Federal Communications Commission • Consumer and Governmental Affairs Bureau • 45 L Street NE, Washington, DC 20554 UntiaaA121MC (1-888-225-5322) • TTY: 1-888-TELL-FCC (1-888-835-5322) • www.fcc.govittMittlovernmPlige&PfuMtt The FDA further states that "the weight of the scientific evidence does not support an increase in health risks from radio frequency exposure from cell phone use at or below the radio frequency exposure limits set by the FCC" (see fda.00v/radiation-emitting-products/cell-phones/scientific-evidence-cell- phone-safety). The FDA maintains a website on RF issues at fda.gov/Radiation- EmittinoProducts/RadiationEmittinoProductsandProcedures/HomeBusinessandEntertainment/CellPhon es/default.htm. The WHO has established an International Electromagnetic Fields Project (IEFP) to provide information on health risks, determine research needs and supports efforts to harmonize RF exposure standards. The WHO provides additional information on RF exposure and mobile phone use at who.int/mediacentre/factsheets/fs193/en/index.html. For more information on the IEFP, go to who.int/peh-emf/en. Some health and safety interest groups have interpreted certain reports to suggest that wireless device use may be linked to cancer and other illnesses, posing potentially greater risks for children than adults. While these assertions have gained increased public attention, currently no scientific evidence establishes a causal link between wireless device use and cancer or other illnesses. Those evaluating the potential risks of using wireless devices agree that more and longer-term studies should explore whether there is a better basis for RF safety standards than is currently used. The FCC closely monitors all of these study results. However, at this time, there is no basis on which to establish a different safety threshold than our current requirements. You can find additional useful information on the FCC's website at fcc.gov/rfsafety and links to some of the other responsible organizations at fcc.00v/enoineering-technology/electromapnetic-compatibility- division/radio-frequency-safety/fao/rf-safety#Q28. What You Can Do Even though no scientific evidence currently establishes a definitive link between wireless device use and cancer or other illnesses, and even though all such devices must meet established federal standards for exposure to RF energy, some consumers are skeptical of the science and/or the analysis that underlies the FCC's RF exposure guidelines. Accordingly, some parties recommend taking measures to further reduce exposure to RE energy. The FCC does not endorse the need for these practices, but provides information on some simple steps that you can take to reduce your exposure to RF energy from cell phones. For example, wireless devices typically emit more RF energy when you are using them. The closer the wireless device is to your body, the more energy you will absorb. Some measures to reduce your RF exposure include: •Reduce the amount of time spent using your wireless device. •Use a speakerphone, earpiece or headset to reduce proximity to the head (and thus head exposure). While wired earpieces may conduct some energy to the head and wireless earpieces also emit a small amount of RF energy, both wired and wireless earpieces remove the greatest source of RF energy (the cell phone or handheld device) from proximity to the head and thus can greatly reduce total exposure to the head. •Increase the distance between wireless devices and your body. •Consider texting rather than talking - but don't text while you are driving. Some parties recommend that you consider the reported SAR value of wireless devices. However, comparing the SAR of different devices may be misleading. First, the actual SAR varies considerably depending upon the conditions of use. In particular, while cell phones are tested at their maximum power levels to ensure safety under even the most severe operating conditions, they will typically FC 2 Federal Communications Commission • Consumer and Governmental Affairs Bureau • 45 L Street NE, Washington, DC 20554 J upgiaaAaik (1-888-225-5322) • TTY: 1-888-TELL-FCC (1-888-835-5322) • www.fcc.gov/ttgralgovertunPagRairau3L operate at much lower power levels resulting in RE exposures much lower than the reported SAR values. Cell phones constantly vary their power to operate at the minimum power necessary for communications; operation at maximum power occurs infrequently. Second, the reported highest SAR values of wireless devices do not necessarily indicate that a user is exposed to more or less RE energy from one cell phone than from another during normal use (see our guide on SAR and cell phones at fcc.00v/quides/specific-absorption-rate-sar-cell-phones-what-it-means-vou). Third, the variation in SAR from one mobile device to the next is relatively small compared to the reduction that can be achieved by the measures described above. Consumers should remember that all wireless devices are certified to meet the FCC's maximum SAR limits. These limits incorporate a considerable safety margin. Information about the maximum SAR value for each phone is publicly available on the FCC website at fcc.gov/oeneral/specific-absorption- rate-sar-cellular-telephones, and may be provided with device documentation or by dialing *#07# on certain models. Additional guidance on reducing RE exposure from cell phones is available on the FDA website at fda.govkadiation-emitting-products/cell-phones/reducing-radio-frequency-exposure-cell- phones. Other Risks While current research indicates that cell phones do not seem to pose a significant health problem for pacemaker wearers, some studies have shown that wireless devices might interfere with implanted cardiac pacemakers if used within eight inches of the pacemaker. Pacemaker wearers may want to avoid placing or using a wireless device this close to their pacemaker. Additional information on potential cell phone interference with pacemakers and other medical devices is available on the FDA website at fda.qov/radiation-emittinq-products/cell-phones/potential-cell-phone-interference- pacemakers-and-other-medical-devices. Consumer Help Center For more information on consumer issues, visit the FCC's Consumer Help Center at fcc.gov/consumers. Alternate formats To request this article in an alternate format - braille, large print, Word or text document or audio - write or call us at the address or phone number at the bottom of the page, or send an email to fcc504@fcc.gov. Last Reviewed 10/29/20 FC 3 Federal Communications Commission • Consumer and Governmental Affairs Bureau • 45 L Street NE, Washington, DC 20554 Jung3a.A2Dia-c (1488-225-5322) • TTY: 1488-TELL-FCC (1-888-835-5322) • www.fcc.govittgiAlloverninE @AugEtAu Exhibit 2 Policy No. 64 Date Issued: 9/26/2017 Effective Date: 9/26/2017 Resolution No. 2017- 189 Cancellation Date: Supersedes No. 64 04/10/12 (City of Carlsbad Council Policy Statement Category: WIRELESS COMMUNICATION FACILITIES Specific Subject: Review and Operation Guidelines for Wireless Communication Facilities PURPOSE: Wireless communication facilities, or WCFs, refer to the many facilities with antennas and supporting equipment that receive and transmit signals and together enable mobile or other "wire-free" communication and information services. Unlike ground-wired telecommunications, such as the land- based telephone system, wireless communication technologies, by their operational nature, require a network of antennas mounted at various heights and attached typically to buildings, structures and poles. A common name for a WCF is "cell site." WCF proposals to the city became commonplace in the mid-1990s. Since then, Carlsbad has processed dozens of new WCF applications and numerous permit renewals for existing facilities, all without benefit of specific review criteria. As the city's population and the popularity and variety of wireless services grow, providers are expected to install more facilities to improve coverage and gain user capacity. This policy's purpose is to guide the public, applicants, boards and commissions, and staff in reviewing the placement, construction, and modification of WCFs. The goal is to assure WCFs in Carlsbad: •Are reviewed and provided within the parameters of law. •Are encouraged to locate away from residential and other sensitive areas, except as allowed by Section A. of this policy — Location Guidelines for the Placement of WCFs. •Represent the fewest possible facilities necessary to complete a network without discriminating against providers of functionally equivalent services or prohibiting the provision of wireless services. •Use, as much as possible, "stealth" techniques so they are not seen or easily noticed. •Operate consistent with Carlsbad's quality of life. This policy applies to all commercial providers of wireless communication services. It does not apply to amateur (HAM) radio antennas, dish antennas, collocations and/or modifications covered under Federal Communications Commission (FCC) regulations at 47 C.F.R. §§ 1.40001 et seq. and other antennas installed on a residence for an individual's private use. Page 1 of 10 8epg@nibbt 26, 2017 Item #2tem #1 Page86 tff38 Policy No. 64 BACKGROUND: To secure the right to provide personal wireless services to a region, companies often must obtain airwave licenses that are auctioned by the FCC, the federal agency that regulates the telecommunications industry. For radio services that use license spectrum, the FCC mandates the licensees establish their service networks as quickly as possible. In Carlsbad, there are three common types of wireless communication systems: Cellular, PCS (Personal Communications Services), and ESMR (Enhanced Specialized Mobile Radio). POLICY: REVIEW RESTRICTIONS: The Federal Telecommunications Act of 1996 (TCA) preserves the city's ability to regulate the placement, construction, and modification of wireless communication facilities subject to the following restrictions. •The city may not favor any carrier. Regulations may not unreasonably discriminate among functionally equivalent service providers. •The city may not prevent completion of a network. Regulations may not prohibit or have the effect of prohibiting the provision of personal wireless services. The denial of a single permit application may cause an effective prohibition if it would perpetuate a significant gap even though the applicant proposes the least intrusive means to close that gap. •Applications are to be processed in a reasonable time. A city must act on an application for WCFs within a "reasonable" amount of time, which the FCC generally defines as either 60, 90, or 150 days from the time an application is submitted and depending on the nature and scope of the proposed wireless facility. •The city cannot deny an application because of perceived radio frequency health hazards. If federal standards are met, cities may not deny permits on the grounds that radio frequency emissions (RF) are harmful to the environment or to the health of residents. However, local governments may require wireless carriers to prove compliance with the standards. The FCC has established procedures to enforce compliance with its rules. •The city cannot deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station, The FCC promulgated detailed regulations for this restriction, including a definition for "substantial change" and procedural rules for processing these applications, which can be found at 47 C.F.R. § 1.40001 et seq. •Certain collocation facilities are not subject to discretionary permit requirements. Under California Government Code section 65850.6, a collocation facility (where two or more wireless operators have located their antennas at a common location) shall be a permitted use not subject to discretionary permit requirements if it satisfies the requirements of that statute. Page 2 of 10 Sepfdrii134 26, 2017 Item #ibm #1 PdOge-Vbff38 Policy No. 64 •A decision to deny an application must be supported by substantial evidence. A decision to deny a WCF application must be in writing and supported by substantial evidence contained in a written record. The reasons for the denial must also be contained in a written record contemporaneously available with the written denial notice and must be clear enough to enable judicial review. HEALTH CONCERNS & SAFEGUARDS: Possible health risks from exposure to the RF electromagnetic fields generated by WCFs are a significant community concern. Accordingly, the FCC requires facilities to comply with RF exposure guidelines published in the Code of Federal Regulations (see 47 CFR § 1.1307 and 47 CFR §1.1310). The limits of exposure established by the guidelines are designed to protect the public health with a very large margin of safety as they are approximately 50 times below the levels that generally are accepted as having the potential to cause a measurable change in human physiology. Both the Environmental Protection Agency and Food and Drug Administration have endorsed the FCC's exposure limits, and courts have upheld the FCC rules requiring compliance with the limits. Most WCFs create maximum exposures that are only a small fraction of the limits. Furthermore, because the antennas in a PCS, cellular, or other wireless network operate more efficiently when in a line of sight arrangement to effectively transmit, their power is focused on the horizon instead of toward the sky or ground. Generally, unless a person is physically next to and at the same height as an antenna, it is not possible to be exposed to RF emissions that exceed the maximum permissible exposure. The FCC requires providers, upon license application, renewal, or modification, to demonstrate compliance with RF exposure guidelines. Where two or more wireless operators have located their antennas at a common location (called "collocation"), the total exposure from all antennas taken together must be within FCC guidelines. Many facilities are exempt from having to demonstrate compliance with FCC guidelines, however, because their low power generation or height above ground level is highly unlikely to cause exposures that exceed the guidelines. REVIEW AND APPROVAL GUIDELINES: Carlsbad Municipal Code Section 21.42.140(B)(165) allows WCFs in all zones with the approval of a conditional use permit (CUP) and subject to this policy. These guidelines should be followed in the review of CUPs for new WCFs as well as extensions and amendments to CUPs for existing installations. For WCFs to be located in the public right-of-way of roads, which generally is not zoned, the following permitting requirements apply: (1)A right of way permit shall be required instead of a CUP for a WCF that is (i) to be located on an existing or replacement pole, (ii) is consistent with the preferred locations in Location Guideline A.1 (or if in a discouraged location in Location Guideline A.2, has all equipment underground), and (iii) is consistent with Design Guidelines for WCFs in the Public Right-of-Way C; (2)A minor CUP by Process 1 shall be required for a WCF that is (i) to be located on an existing or replacement pole, (ii) is in a discouraged location in Section A with above-ground equipment, and (iii) is consistent with Design Guidelines for WCFs in the Public Right-of-Way C; Page 3 of 10 Sepfan415b1. 26, 2017 Item #1;tm #1 Pa3geeabfr38 Policy No. 64 (3) A CUP by Process 2 shall be required for all other WCFs not meeting the criteria for approval subject to a right of way permit or a minor CUP by process 1. A. Location Guidelines For Placement of WCFs 1. Preferred Locations — WCFs are encouraged to locate on existing buildings and structures. In addition, WCFs should be located in the following zones and areas, which are listed in order of descending preference: a.Industrial zones. b.Commercial zones. c.Other non-residential zones, except open space. d.Public right-of-way of roads adjacent to industrial and commercial zones and identified on the map attached as Exhibit A. e.Public property (e.g., city facilities) not in residential areas. f.Major power transmission towers in non-residential zones or areas. g.Public and private utility installations (not publicly accessible) in residential and open space zones (e.g., water tanks, reservoirs, or the existing communication towers near Maerkle Reservoir). h.Parks and community facilities (e.g., places of worship, community centers) in residential zones or areas. i.Public right-of-way of roads adjacent to residential zones and identified on the map attached as Exhibit A. 2. Discouraged Locations — WCFs should not locate in any of the following zones or areas unless the applicant demonstrates no feasible alternative exists as required by Application and Review Guideline E.2. a.Open space zones and lots (except as noted in Location Guideline A.1.). b.Residential zones or areas (except as noted in Location Guideline A.1). c.Major power transmission towers in corridors located in/or next to a residential zone or area. d.Environmentally sensitive habitat. e.Public right-of-way of roads not identified on the map attached as Exhibit A. f.On vacant land. 3. Visibility to the Public — In all areas, WCFs should be located where least visible to the public and where least disruptive to the appearance of the host property. Furthermore, no WCF should be installed on an exposed ridgeline or in a location readily visible from a public place, recreation area, scenic area or residential area unless it is satisfactorily located and/or screened so it is hidden or disguised. 4. Collocation — Collocating with existing or other planned wireless communication facilities is recommended whenever feasible and appropriate. Service providers are also encouraged to collocate with water tanks, major power transmission and distribution towers, and other utility structures when in compliance with these guidelines. The city must approve collocation applications unless the expansion adds significantly to the height or width of a facility. Page 4 of 10 Sept§rr415* 26, 2017 Item #lem #1 P6gse9-bff'38 Policy No. 64 5. Monopoles — No new ground-mounted monopoles should be permitted unless the applicant demonstrates no existing monopole, building, or structure can accommodate the applicant's proposed antenna as required by Application and Review Guideline E.3. B. Design Guidelines 1. Stealth Design —All aspects of a WCF, including the supports, antennas, screening methods, and equipment should exhibit "stealth" design techniques so they visually blend into the background or the surface on which they are mounted. Subject to city approval, developers should use false architectural elements (e.g., cupolas, bell towers, dormers, and chimneys), architectural treatments (e.g., colors and materials), elements replicating natural features (e.g., trees and rocks), landscaping, and other creative means to hide or disguise WCFs. Stealth can also refer to facilities completely hidden by existing improvements, such as parapet walls. 2. Equipment — Equipment should be located within existing buildings to the extent feasible. If equipment must be located outside, it should be screened with walls and plants. If small outbuildings are constructed specifically to house equipment, they should be designed and treated to match nearby architecture or the surrounding landscape. 3. Collocation — Whenever feasible and appropriate, WCF design and placement should promote and enable collocation. 4. Height — WCFs should adhere to the existing height limitations of the zone in which they are located. 5. Setbacks —WCFs, including all equipment and improvements, should adhere to the building setback requirements of the zone in which they are located, with the following clarifications: a.If on a site next to a residential zone, the WCF should be set back from the residential zone boundary a minimum distance equal to the above-ground height of the overall support structure's height. b.If in a residential zone and in a public utility installation, park, or community facility, the WCF should be set back from the property boundaries of the utility installation, park, or community facility a minimum distance equal to the above-ground height of the overall support structure's height. c.The Planning Commission may decrease or increase these setbacks if it finds such changes would improve the overall compatibility of the WCF based on the factors contained in Application and Review Guideline E.4. 6. Building or Structure-Mounted WCFs: a.Antennas and their associated mountings should generally not project outward more than 24 inches from the face of the building. b.Roof-mounted antennas should be located as far away as possible from the outer edge of a building or structure and should not be placed on roof peaks. c.If permitted, WCFs on residential buildings should only be allowed if disguised as a typical residential feature (e.g., a chimney, a dormer) and if all equipment is located inside, not outside, the building. Page 5 of 10 filepfflnib* 26, 2017 Item #2tem #1 Pag0g10.bff Policy No. 64 7. Ground-mounted Monopoles: a.All antennas should be mounted as close as possible to the monopole to improve facility appearance. b.The placement, screening, and disguise of the monopole should fit with the surrounding site design, architecture, and landscaping. Tree disguises, such as a "mono-palm," may be acceptable depending on their quality and compatibility with landscaping nearby. c.Landscaping should be provided as necessary to screen, complement, or add realism to a monopole. Landscaping should include mature shrubs and trees. Some of the trees should be tall enough to screen at least three-quarters of the height of the monopole at the time of planting. Sometimes, landscaping may not be needed because of the monopole's location or vegetation already nearby. d.When possible and in compliance with these guidelines, monopoles should be placed next to tall buildings, structures, or tall trees. 8. Lattice Towers a.New lattice towers should not be permitted in the city. b.On existing lattice towers, all antennas should be mounted as close as possible to the tower so they are less noticeable. 9. Undergrounding — All utilities should be placed underground. 10. Regulatory Compliance — WCFs should comply with all FCC, FAA (Federal Aviation Administration), and local zoning and building code requirements. C. Design Guidelines for WCFs in the Public Right-of-Way 1. WCFs on Existing and Replacement Poles a.The use of an existing pole, replacement pole or other existing structure shall require the authorization of the owner of the pole or structure. b.The antenna assembly may not exceed four feet above the height of the existing pole. c.The antenna(s) associated with the installation shall be concealed with a radome that also conceals the cable connections, antenna mount, and other hardware. d.All pole-mounted equipment shall be painted to match the color of the surface of the pole on which they are attached or shall otherwise be screened to reduce their visibility. 2. WCFs on New Poles a.All WCFs on new poles require a CUP by Process 2. b.No more than one new pole per block will be permitted unless the applicant demonstrates with clear and convincing evidence that: (1) no other existing structures are available to the applicant; (2) a new pole or structure is essential to providing coverage; and (3) the new pole or structure is the least intrusive means in terms of design and placement to reasonably achieve the applicant's technical objective. c.The centerline of any new pole must be aligned with the centerlines of existing poles on the same sidewalk segment. Any new pole and/or equipment and other Page 6 of 10 8epfe3a4l5el- 26, 2017 Item #21tem #1 pagiagt1I-V-1-36 Policy No. 64 improvements associated with a new pole or an existing pole must be set back from intersections, alleys, and driveways and placed in locations where it will not obstruct motorists' sight lines or pedestrian access. In general, there is a presumption of no obstruction where a new pole and/or equipment is set back at least: (1) 50 feet from any intersection; (2) six feet from any driveway cut or alley entrance or exit; (3) and six feet from any permanent object or existing lawfully-permitted encroachment in the public right-of-way, including without limitation bicycle racks, traffic signs and signals, trees, open tree wells, benches or other street furniture, streetlights, door swings, gate swings, or sidewalk café enclosures. d.The city may, in its discretion, require an additional setback for a specific pole when the city determines that the presumptively acceptable setback would obstruct motorists' sight lines or pedestrian access. e.The city may require the applicant to install functional streetlights and/or banners when technically feasible and the city determines that such additions would enhance the overall appearance and usefulness of the new pole. f.New poles shall not exceed the height limit for the zoning district nearest to the base of the pole or the average height of poles within a 300-foot radius, whichever is less. 3. Design Guidelines Applicable to WCFs on Existing and New Poles a.Each antenna shall not exceed 3 cubic feet in volume; the cumulative antenna volume per pole shall not exceed 6 cubic feet. Mounting arms, hardware, and concealment elements such as shrouds, radomes, or other covers are included in the antenna volume limits. b.All other equipment associated with the WCF shall not exceed 6.5 cubic feet in volume. All non-antenna equipment including ground-mounted meter pedestals and concealment elements such as shrouds and cages, are included in the equipment volume limit. Electric meters and disconnect switches that are mounted on the pole and any equipment placed underground are not included in the equipment volume limit. c.Equipment shall be placed underground in discouraged locations. If it can be demonstrated that complete undergrounding of associated equipment is not possible, waiver requests involving landscaping or other screening techniques or visual mitigation will be considered. All equipment not placed underground shall be: (1) placed in a ground-mounted equipment shroud or cabinet that contains all equipment associated with the WCF other than the antenna; and (2) set back at least 2.5 feet from the back of the curb and within the parkway or greenway or 2.5 feet back from the edge of the sidewalk when it is contiguous to the curb. All cables and conduits associated with the equipment shall be concealed from view, routed directly through the pole, and placed underground between the pole and the ground-mounted cabinet. d.All equipment associated with the WCF shall be located so as to minimize impacts to pedestrian access and vehicular site distance and safety. e.Cabinets for appurtenant telephone and/or fiber optic utilities may not extend more than 10 inches beyond the pole centerline on either side, and must be painted, wrapped, or otherwise colored to match the pole. Microwave or other wireless backhaul shall not have a separate and unconcealed antenna. f.To reduce clutter and deter vandalism, excess fiber optic or coaxial cables shall not be spooled, coiled, or otherwise stored on the pole whether in a cabinet or not. Page 7 of 10 Sep nIbbt 26, 2017 Item #2tem #1 pagiagt253038 Policy No. 64 D. Performance Guidelines 1.Noise — All equipment, such as emergency generators and air conditioners, should be designed and operated consistent with the city noise standards. 2.Maintenance — All facilities, related equipment, and landscaping should be maintained in good condition and free from trash, debris, graffiti, and any form of vandalism. All required landscaping should be automatically irrigated. Damaged equipment and damaged, dead, or decaying landscaping should be replaced promptly. Replacement of landscaping that provides facility screening should be, as much as possible, of similar size (including height), type, and screening capability at the time of planting as the plant(s) being replaced. 3.Maintenance Hours— Except in an emergency posing an immediate public health and safety threat, maintenance activities in or within 100 feet of a residential zone should only occur between 7 AM (8 AM on Saturdays) and sunset. Maintenance should not take place on. Sundays or holidays. 4.Lighting — Security lighting should be kept to a minimum and should only be triggered by a motion detector where practical, 5.Compliance with FCC RF Exposure Guidelines — Within six (6) months after the issuance of occupancy, and with each time extension or amendment request, the developer/operator should submit to the City Planner either verification that the WCF is categorically excluded from having to determine compliance with the guidelines per 47 CFR §1.1307(b)(1) or a project implementation report that provides cumulative field measurements of RF electromagnetic fields of all antennas installed at the subject site. The report should quantify the RF emissions and compare the results with currently accepted ANSI/IEEE standards as specified by the FCC. The City Planner should review the report for consistency with the project's preliminary proposal report submitted with the initial project application and the accepted ANSI/IEEE standards. If, on review, the City Planner finds the project does not meet ANSI/IEEE standards, the city may revoke or modify the CUP. 6.Abandonment - Any WCF that is not operated for a continuous period of 180 days will be considered abandoned. Within 90 days of receipt of notice from the city notifying the owner of such abandonment, the WCF owner must remove the facility and restore the site, as much as is reasonable and practical, to its prior condition. If such WCF is not removed within the 90 days, the WCF will be considered a nuisance and in addition to any other available remedy, will be subject to abatement under Chapter 6.16 of the Carlsbad Municipal Code. If there are two or more users of a single WCF, then this provision will not become effective until all users stop using the WCF. The provider or owner must give notice to the city of the intent to discontinue use of any facility before discontinuing the use. E. Application and Review Guidelines 1. Besides the typical submittal requirements for a CUP (including plans, landscape details, and color and material samples, as appropriate), all WCF applications should include the following items: Page 8 of 10 Sepf@r1415b1. 26, 2017 Item #2tem #1 pagegtabff38 Policy No. 64 a.A description of the site selection process undertaken for the WCF proposed. Coverage objectives and the reasons for selecting the proposed site and rejecting other sites should be provided. b.A description or map of the applicant's existing and other proposed sites. c.A description of the wireless system proposed (e.g., cellular, PCS, etc.) and its consumer features (e.g., voice, video, and data transmissions). d.Verification that the proposed WCF will either comply with the FCC's guidelines for human exposure to RF electromagnetic fields or will be categorically excluded from having to determine compliance with the guidelines per 47 CFR §1.1307(b)(1). If WCFs are proposed for collocation, the verification must show the total exposure from all facilities taken together meets the FCC guidelines. e.Color photo-simulation exhibits, prepared to scale, of the proposed WCF to show what the project would look like at its proposed location and from surrounding viewpoints. The City Planner may waive the requirement to provide the exhibits if he determines they are unnecessary. 2. For WCFs proposed in a zone or area that is a discouraged WCF location as listed in Location Guideline A.2., the applicant should provide evidence that no location in a preferred zone or area as listed in Location Guideline A.1. can accommodate the applicant's proposed facility. Evidence should document that preferred zone or area locations do not meet engineering, coverage, location, or height requirements, or have other unsuitable limitations. 3. For proposed new ground-mounted monopoles, the applicant should also provide evidence to the city's satisfaction that no existing monopole, building, structure, or WCF site ("existing facility") could accommodate the proposal. Evidence should demonstrate any of the following: a.No existing facility is located within the geographic area or provides the height or structural strength needed to meet the applicant's engineering requirements. b.The applicant's proposed WCF would cause electromagnetic interference with the existing antennae array or vice versa. c.The fees, costs, or contractual provisions required by the owner to locate on an existing facility or to modify the same to enable location are unreasonable. Costs exceeding new monopole development are presumed to be unreasonable. d.The applicant demonstrates to the decision-maker's (Planning Commission or City Planner) satisfaction that there are other limiting factors that render an existing facility unsuitable. 4. In considering a CUP for a WCF, the decision-maker (Planning Commission or City Planner) should consider the following factors: a.Compliance with these guidelines. b.Height and setbacks. c.Proximity to residential uses. d.The nature of uses on adjacent and nearby properties. e.Surrounding topography and landscaping. f.Quality and compatibility of design and screening. g.Impacts on public views and the visual quality of the surrounding area. h.Availability of other facilities and buildings for collocation. Page 9 of 10 Sep§§n413* 26, 2017 Item #2tem #1 PaPgt4bff38 Policy No. 64 5. Conditional Use Permits for WCFs shall be granted for a period not to exceed ten years unless public safety reasons and/or substantial land use reasons justify a shorter term. A WCF that is decommissioned, discontinued, or otherwise abandoned by the owner or operator for a continuous one-year period is subject to revocation under Section 21.42.120 of the Carlsbad Municipal Code. Upon a request for either an extension or an amendment of a CUP, the WCF should be reevaluated to assess the impact of the facility on adjacent properties, the record of maintenance and performance with reference to the conditions of approval, and consistency with these guidelines. Additionally, the city should review the appropriateness of the existing facility's design, and the applicant should be required to document that the WCF maintains the design that is the smallest, most efficient, and least visible and that there are not now more appropriate and available locations for the facility, such as the opportunity to collocate or relocate to an existing building. 6. Collocation. For the purposes of collocation, the following definitions apply: (i)"Collocation facility" means the placement or installation of WCFs, including antennas, and related equipment, on or immediately adjacent to, a wireless telecommunications collocation facility. (ii)"Wireless telecommunications facility" means equipment and network emergency power systems that are integral to providing wireless telecommunications services. (iii)"Wireless telecommunications collocation facility" or "WTCF" means a wireless telecommunications facility that includes Collocation facilities. a. A conditional use permit shall not be required for a proposed WCF Collocation facility which will be placed on a previously approved WTCF provided that: (i)The new WCF Collocation facility is consistent with requirements for the existing WTCF installation; and (ii)The modification of an existing wireless tower or base station does not physically change the dimensions of such tower or base station. b. Approval of an application to construct or reconstruct a WCF wireless facility shall not require an escrow deposit for removal of the WCF Collocation facility or any component thereof. c. Notwithstanding subsection (b) above, the city may require a performance bond or other surety or another form of security if the amount required is rationally related to the cost of removal. 7. Applications from a single provider of wireless communication services for up to 10 permits to locate WCFs on existing or replacement poles in the right-of-way, and meeting the criteria for right of way permits, may be batched and processed together. A single provider may not submit more than one batch of applications at one time. Page 10 of 10 Sep 11413N• 26, 2017 Item #2Item #1 papgrtagaff38 1.1 N VITA LAGOON 1L-1 -71 LAKE CALAVEIRA AQUA NED1ONDA LAGOON ARMADA DR AIRPORT pAPolk‘ CAMINO VIDA ROBLE CAMINO JUNIPERO — Preferred Locations for Placement of WCF in the ROW Railroad FREEWAY CAMINO DE LOS COCHES OLNENHAIN - Miles eg!i,e§sMar,02015 \ Corn. con Dev \plan ping10002370546 \Poliqy04).301/VsF or F_8x xd, 02108/2017 Exhibit A Preferred Locations for Placement of Wireless seodirciaRypication Facilities ifiriPageRiglATAfer Hector Gomez All Receive Agenda Item II For the Information of the: cllY COUNCIL Date:2i 9/le CA CCA rro.'(-- )( oi From: Irene Tsutsui <irenegdnight@earthlink.net> Sent: Wednesday, February 19, 2020 9:57 AM To: Jason Haber Cc: Scott Chadwick; Celia Brewer; Matthew Hall; Priya Bhat-Patel; Cori Schumacher; Keith Blackburn; City Clerk Subject 5 LAWSUITS VS FCC/SAFETY CONCERNS REQUIRE IMMEDIATE MORATORIUM ON 5G DEPLOYMENT IN CARLSBAD Dear Mr. Haber: Thank you for giving me the opportunity to discuss with you my great concerns (as also conveyed to me by others) with respect to the 5G 'small cell' deployment in Carlsbad. Just to summarize the high points of our discussion, here are my final thoughts. A.The most critical issue is for the City of Carlsbad to implement an immediate and emergency pause ordinance (as has been done in many other cities) in the construction and operation of 5G 'small cell' wireless infrastructure in any form (to include but not be limited to 413/50 towers and antennas) at least until the workshop transpires. Under the circumstances of high uncertainty and probable harm to humans and the environment per over 1500 scientific studies and numerous lawsuits against the FCC with its outdated 1996 "thermal" only safety guidelines, the City of Carlsbad has a moral imperative and the legal authority to implement an immediate emergency pause ordinance B.it is extremely urgent and important to have the subject of 50 'small cell' infrastructure (including pending 40/5G construction and operation) put on the City Council meeting agenda ASAP. I ask this once again since we have done so repeatedly over the last 2 months in various ways to no avail. I and others would also like to see the May 12 workshop changed to an earlier date. These steps would go a long way in assuring us that the urgency of the 4G/56 'small cell' infrastructure concerns are being addressed in a serious and timely manner. You had asked if I/we had met with anyone; a meeting arranged with one or two council members and someone from your planning/public works department would be useful to address some of our questions. C.When it comes time to have the workshop, it is crucial that we (citizens) be given the opportunity to give our input applying the Precautionary Principle approach. It is important that citizens have a say in decisions that are made with respect to 4G/5G 'small cell' deployment since we are the ones who are being exposed to its pervasive wireless radiation and the resulting health, safety and security hazards not to mention how the aesthetics of the city and our house property values are being negatively impacted. D, D, We would prefer to have an expert who is well-informed on all aspects of the health, safety and security facets of 4G/50 'small cell' wireless technology and infrastructure be a main panel advisor at the workshop; an adviser or consultant who is mainly an authority on telecommunications law will not afford us the same expertise to address citizens' concerns. If the City does not know someone, may I suggest we be allowed to bring in our own advisor(s)? I would appreciate hearing back from you by March 1, 2020, or at the earliest moment in which you may become informed of the issue of 50 'small cell' infrastructure/deployment being put on the City Council meeting agenda. I have sent copies of this letter to all parties who were sent my. original February 7th letter. Sincerely, Irene Tsutsui June 23, 2021 1. Item #1 Page 20 of 38 Carlsbad resident Ph 760-602-0839 From: Jason Haber [mailto:Jason.Haber@carlsbadca.gov] Sent: Tuesday, February 18, 2020 2:08 PM To: Irene Tsutsui Subject: RE: 5 LAWSUITS VS FCC/SAFETY CONCERNS REQUIRE IMMEDIATE MORATORIUM ON 5G DEPLOYMENT IN CARLSBAD Ms. Tsutsui- A call at 2:30 today would be fine. You can reach me at 760-434-2958. Thanks, Jason Haber Intergovernmental Affairs Director City of Carlsbad From: Irene Tsutsui [mailto:irenegdnight@earthlink.netj Sent: Tuesday, February 18, 2020 1:44 PM To: Jason Haber ‹lason.Haber@carlsbadca.gov> Subject: RE: 5 LAWSUITS VS FCC/SAFETY CONCERNS REQUIRE IMMEDIATE MORATORIUM ON 5G DEPLOYMENT IN CARLSBAD Dear Mr. Haber, Thank you for your response. My 7607602-0839 is a working phone number, but I do have a no irobocalli block for those calls so maybe something happened with that. May I call you this afternoon about 2:30 pm or what other time is convenient? Thank you, Irene Tsutsui From: Jason Haber [mailto:Jason.Haber@carlsbadca.gov] Sent: Tuesday, February 18, 2020 11:39 AM To: irenegdnightCaearthlink.net Cc: Scott Chadwick; City Clerk Subject: RE: 5 LAWSUITS VS FCC/SAFETY CONCERNS REQUIRE IMMEDIATE MORATORIUM ON 5G DEPLOYMENT IN CARLSBAD Dear Ms. Tsutsui — Thank you for contacting the City of Carlsbad and sharing your concerns regarding 5G deployment. Our City Manager, Scott Chadwick, asked me to contact you regarding those concerns and to inform you that we are planning to address this matter at a City Council workshop on May 12 (5 p.m. at the Faraday Administration Center — 1635 Faraday Ave.). I tried contacting you at the phone number you provided below, but the number is no longer in service. Please contact me at your convenience should you wish to discuss this matter further. Thank you, 2 June 23, 2021 Item #1 Page 21 of 38 Jason Haber Intergovernmental Affairs Director (City of Carlsbad 760-434-2958 I Jason.Haber@carlsbadca.gov 1200 Carlsbad Village Drive Carlsbad, CA 92008-1949 www.carisbadca.gov Facebook j Twitter I You Tube I Flickr I Pinterest 1 Enews From: Irene Tsutsui <irenegdnight@earthlink.net> Sent: Friday, February 7, 2020 12:43 PM To: Scott Chadwick <ScottChadwickPcarlsbadca.gov> Cc: City Clerk <Clerk@carisbadca.gov> Subject: 5 LAWSUITS VS FCC/SAFETY CONCERNS REQUIRE IMMEDIATE MORATORIUM ON 5G DEPLOYMENT IN CARLSBAD Importance: High Dear Mr. Chadwick: Carlsbad residents are becoming increasingly concerned about the 5G/Smart Cell towers and antennas already installed with others assumed to be in the pipeline. These are being deployed with no consideration being given to the negative impacts to citizens' health and safety. Recent major lawsuits reflect the growing implausibility of the 5G deployment under 'business as usual' conditions and demand your immediate attention. In order to help you grasp the urgency of the situation, I am sending the attached article written by attorneys summarizing the lawsuit by Montgomery County, MD vs. FCC (lawsuit #1) The article gives an excellent overview of the main issues concerning Carlsbad citizens regarding the installation of 5G/Smart Cell towers and antennas. The primary issues of health and safety were never properly addressed (for decades) by the FCC which simply stuck to its extremely outdated 1996 safety guidelines. I spoke at the January 21 City Council meeting to inform you that the FCC's omission of "non-thermal" measurements does a terrible injustice to anyone unwittingly harmed from exposure to wireless radiation at the lower non-thermal levels. By limiting its safety guidelines to "thermal" only specifications, the FCC has completely ignored thousands of scientific research reports conveying damage to humans and living things on a biological level from non-thermal exposure. Four other major lawsuits filed have put the FCC under growing legal pressure. The outcome of all the lawsuits (including the National League of Cities r d attachment lawsuit #2) will determine whether or not 5G/Smart Cell wireless technology can continue to be deployed. As it is now, in my personal view any 5G tower or antenna that has already been installed has been authorized under illegal auspices. As stated in the attached article, "Specifically, Montgomery County is asking the Ninth Circuit to determine whether the FCC violated the National Environmental Policy Act and the Administrative Procedure Act by failing to conduct an environmental analysis of the RF standards and potential .5G health risks, or explain why it did not consider whether its own existing RF standards will be protective of human health in a new 5G world." ... Yet despite this mandated obligation to protect the public health, the FCC ignored its NEPA obligations in the rush for nationwide migration to 5G." 3 June 23, 2021 Item #1 Page 22 of 38 "Similar to the FCC's shortcomings under NEPA, the FCC also violated the APA because it failed to consider whether the current RF standards will fully protect the health and safety of citizens living and working directly adjacent to 5G small cells and did not explain why it ignored this relevant factor. Linder the APA, courts will strike down agency action as arbitrary and capricious if the agency has, among other things, "entirely failed to consider an important aspect of the problem." The FCC has acknowledged it has a responsibility to follow the regulations so they can no longer continue to bury their head in the sand. The second attachment shows lists of National League of Cities (US) plaintiffs in September 2019 and January 2020. Note, the number of plaintiffs has grown substantially (50%+ now comprising almost two pages) in four months ago indicating the growing groundswell movement against 5G wireless technology being deployed without safety studies or updated guidelines to ensure the health and safety of citizens. Note toward the bottom (via 'technocracy' link below my signature) a December listing of the "Lawsuit IrregulatOrs vs. FCC alleges theft and redirection of estimated $1 trillion in funds..." (lawsuit #3) The outcome of this lawsuit could have a very deleterious effect on further deployment of SG/Smart Cell towers arid antennas/wireless technology; basically it alleges that utility consumers have been paying for WIRED technologYy, service for many years 'thus are entitled to receive WIRED vs. wireless service, thecheaper but more dangerous option health-wise. The newly filed lawsuit against the FCC by Robert F. Kennedy Jr'S Childre0 Defense Fund (lawsuit #4) will garner vvide support similar to what his team gathered in challenging the safety of Monsanto's Roundup (glyphosate) weed killer. Parent company Bayer recently announced an $8 billion settlement of claims with an additional $2 billion to be allocated to future damage claims from toxic gl3rphosate exposure. Based on the success of the Kennedy legal team's lawsuit against a major goliath agriculturatentity, please consider the huge impact Kennedy's lawsuit will likely have on Weakening the FCC's legal defense of its having violated its NEPA and APA obligations. If the courts determine that the FCC must update its safety guidelines, this will have a huge impact on the SG rollout possibly imposing a moratorium or severe restrictions on same. CHD v the Federal Communication Commission (FCC ... (Robert F. Kennedy jr's Childrens Health Defense-lawsuit #4) ‘shttps://childrenshealthdefense.org/.../legal/chd-v-federal-communication-commission-fc Additionally, another recent lawsuit will weigh heavily against the FCC. Scientists Sue FCC for Dismissing Studies Linking Cell Phone Radiation to Cancer (lawsuit #5) https://lawandcrime.com/administrative-law/scientists-sue-fcc-for-dismissina-clairns-that-cell-phone-radiation-ca uses- cancer/ The ltechnocracy'link (below my signature) indicates the strong global movement against 5G; example, the 100 Italian municipalities noted below and a moratorium called for via The 5G appeal signed by 253 scientists and 42 nations. note there is a list of lawsuits named in one item as you scroll down the page. The second link www.bioinitiative.org often named as a reference item in lawsuits provides peer reviewed studies (non-industry) on the health aspects, and the summaries and charts and graphs show the majority of reports point to the health hazards of RF-EMF radiation; the website has been updated since 2012. I am sending this information to you because I do not feel citizens' concerns expressed at the City Council meetings have been taken with the kind of urgency that is needed. It is important that you and others do your due diligence to determine the high risk to which Carlsbad citizens are being exposed every time a new 5G/Smart Cell tower or antenna is installed especially in schools and residential neighborhoods. This eqUipment is not safe not only on the health front, but the fire hazard and uninsurability/liability is something else that was pointed out to you. A thorough review of the lawsuits and accompanying complaints would shed light on the magnitude of the problems and dangers which the 5G rollout exposes to citizens and especially children and electro-sensitive people fearful of harmful health and safety consequences. 4 June 23, 2021 Item #1 Page 23 of 38 I and other concerned citizens (including the hundreds of petition signers submitted to the City Council and officials on January 21) seek an urgent moratorium on 50 wireless deployment. The City has a legal right to take emergency action using the Precautionary Principle or precautionary approach which is being used worldwide as a strategy combining public input with viable and/or alternate solutions. The recent lawsuits point to the high uncertainty and legal risks associated with continuing the 50 deployment without reservation or exploring alternatives. Uncertainty argues for an emergency moratorium using the precautionary approach until the courts decide the legal outcomes of lawsuits filed against the FCC. Cities and countries have adopted such an approach incorporating public input to either ban or severely restrict 5G wireless deployment. The World Health Organization has published a guideline including recommendations from numerous experts on implementing a strategy based on the Precautionary Principle. (see link below this paragraph) I urge you to review it since the wireless health issue is unsettled and published reports on the health dangers of wireless technology have raised serious issues that have not yet been addressed by the FCC. Note, "public participation" and exploring "alternate courses of action" are required to ensure a "positive approach to health protection.." Applying precaution to achieve more health-protective decisions in this context requires a set of precautionary considerations throughout the whole cycle from problem framing, knowledge production, identification and characterization of risk, risk management, post-implementation follow-up, identification of knowledge gapS and research needs and back again. Such instruments as analysis of alternative courses of action, expanded scientific tools, incentives for research and innovation and enhanced public participation can in fact ensure a more proactive and positive approach to health protection, while improving decision-making." Note, the particular emphasis and importance to children and future generations in items 15, 17 and 18. You were notified at the ast January 26 city council meeting how vulnerable young children are vs. adults since their brains are not yet fully developed. The precautionary principle: protecting public health, the environment and the future of our children htto://www.euro.vvho.inti data/assets/pdf file/0003/91173/E83079.pdf PRINCIPLE GUIDELINES) THE WORLD HEALTH ORGANIZATION EUROPE (PRECAUTIONARY Thank you for considering the information I have sent to you. Hopefully concerned citizens can work together with you to achieve a mutually accepted solution to the grave concerns Carlsbad citizens have on 56 wireless deployment. Time is of the essence, however, as 5G/Smart Cell towers and antennas have already been installed and I assume are continuing to be deployed with no consideration being given to the negative impacts to citizens' health and safety. The time to act on this is here and now to avoid unnecessary harm to citizens and potential liability to Carlsbad for costs associated with such harm and other previously noted hazards of SG/Smart Cell towers and antenna installations. May I suggest respectfully that emergency actions should be taken to avoid a breach of oath so that Carlsbad officials can demonstrate their primary duty to protect citizens' health and safety. To that end I would appreciate receiving an acknowledgement from you on what your recommended actions would be to resolve citizens' concerns and the time frame involved for such actions. Please feel free to contact me at any time. Sincerely, Irene Tsutsui Ph 760-602-0839 cc: City Clerk https://www.technocracy.news/telecoms-face-rnajor-global-resistance-to-5g-rollout/ www.bioinitiativc.org (peer reviewed scientists reports) 5 June 23, 2021 Item #1 Page 24 of 38 Telecoms Face Major Global Resistance To 5G Rollout Lawsuit Irregulators vs. FCC alleges theft and redirection of estimated $1 trillion in funds by the US telecom industry and FCC to enable 56 rollout. America's households USA14 and businesses have been charged at least December nine times for broadband/fiber optic services, including the wiring of schools, libraries, and hospitals — about $4000- $7000 per household, and the total is way over Y2 trillion dollars by 2016. (Book) 100 Italian municipalities officially stop Ital3i10 densifted 40/50 by adopting the December precautionary principle according to article 32 of the Italian constitution and moratoria. (see other countries protesting 56 including France, UK, Ireland, Germany, Switzerland, Netherlands, Australia, Belgium, Canada and Russia). 2018-05-02 Doctors in Europe ask for Precautionary Principle re. 5G —> moratorium Doctors ask for a moratorium on implementing 5G technology due to health effects and argue for the Precautionary Principle to be used as a guide. Industry should have to prove 5G is safe — we should not have to prove it isn't. http://ww-w.isde.org/5G appealpdf Scientists and Doctors Demand Moratorium on 5G https://www.saferemr.corn/2017/09/5G-moratorium12.html Sep 5, 2019 (updated Sep 17, 2019) As of today, 253 scientists and doctors from 42 nations have signed the The 5G Appeal which calls for a moratorium on the deployment of 56, the fifth generation of cellular technology. CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe. CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe. CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content F;;;;.' 6 June 23, 2021 Item #1 Page 25 of 38 196 190 Putting the Cart Before the Horse - The FCC's "SG First, Safety Second" Policy BY: ALBERT CATALANO, Counsel, ERIC GOTTING, Partner, and TIMOTHY DOUGHTY, Associate, Keller and Heckman, LLP. Washington D.C. I n September 2018, the Federal Communications Commission ("FCC" or "Com- mission") released a Declaratory Ruling with the goal of accelerating the deploy- ment of 5G wireless broadband services across the country ("Small Cell Order" or "Order")) The Commission sees its action as needed so that the U.S. "wins the global race to SG."2 The wireless industry promises that with fifth generation wireless net- work technology - or SG as it is more commonly known - greater wireless speeds and lower latency will lead to innovation and uses such as augmented and virtual reality, the Internet of Things, smart homes, smart cities and autonomous cars. However, in order to win "the SG race," hundreds of thousands of small cell transmitters must be deployed on a national scale and in densely populated areas. The FCC's carrier-centric Order has and safety. had several controversial effects on local Montgomery County, Maryland ap- jurisdictions: (i) limiting state and local pealed the Small Cell Order based on the regulatory authority over wireless infra- RI' issue and its case has been consolidated structure deployment; (ii) mandating that in the United States Court of Appeals for fees for carrier use of public rights-of-way .the Ninth Circuit with numerous appeals ("ROW") and facilities within the ROW challenging other parts of the same order. be limited to costs; and (iii) rushing the Specifically, Montgomery County is asking deployment of hundreds of thousands of the Ninth Circuit to determine whether the SG transmitters into residential areas and FCC violated the National Environmental other public spaces without ever consid- Policy Act and the Administrative Proce- ering if the Commission's decades-old dure Act by failing to conduct an environ- Radiofrequency ("RF") safety standards mental analysis of the. RF standards and remain sufficient to protect public health potential 5G health risks, or explain why it did not consider whether its own existing RF standards will be protective of human health in a new SG world. The FCC's RF Exposure Rules The FCC has an obligation to evaluate the risks of human exposure to RF energy wider various statutory and regulatory provisions, including the National Environmental Pol- icy Act of 1.969 ("NEPA"), which requires Federal agencies to assess the effects of their actions on the quality of the human environ- ment3 The Commission has long recog- niwd its responsibility to evaluate whether . FCC-regulated RF transmitters and facilities could harm the public health.4 In 1985, the Commission adopted a 1982 American National Standards Institute ("ANSI") standard for RF radiation on the environments The ANSI standard was fairly basic and only contained one set of exposure limits. In 1992, ANSI replaced its 1982 standard and set out exposure criteria for "controlled environments" (like indus- trial locations only accessible to employees and contractors) and "uncontrolled environ- ments" (typically accessible by the general public).' A year later, in 1993, the FCC initiated a rulemaking proceeding to update its RF exposure standards based on the 1992 ANSI standard.? In enacting the Telecommunications Act of 1996 ("Act"), Congress required the FCC to complete its on-going RF proceeding and adopt new rules)s° The Act also preempted State and local governments from regu- lating "personal wireless service" facilities based on the effects of RF emissions if those facilities comply with the Commission's RF regulations.9 Based on scientific knowledge at the time, the rules adopted by the Commission in 1996 were designed to protect only against the thermal effects of RF exposure — that is, the excessive heating of biological tissue as a result of exposure to RF energy. The rules did not establish exposure limits 14 Municipal Lawyer June 23, 2021 Excerpted from Municipal Lawyer: The Journal of Local Government Law September/October 2019 Item #1 Page 26 of 38 based on potential non-thermal effects, such as cancer, neurological impacts, and - immune system deficiencies:" Also, when these rules were adopted nearly 23 years ago, the typical height for free standing wireless base station towers was between SO and 200 feet above ground." Often these towers were in locations along highways and far from residential or commercial areas. In con- trast to the longer wavelengths of earlier technologies which allowed cell towers to be spaced miles apart, the 5G wireless transmitters covered by the FCC's Order will rely on higher frequency millimeter wavelengths that carry massive amounts of information only short distances: ... As a result, small cell poles (such as streetlights and lamp posts) will have SG transmitters that are less than 50 ft. off the ground and will be located only a few hundred feet or less apart in rights-of- way like sidewalks and alleyways, only yards from homes and businesses. Yet, despite this vastly different environment for SG, in its Order the FCC summarily dismissed the requests of Montgomery County and others to reevaluate the Commission's RF rules, instead leaving standards of Over 20 years in place with- out any environmental evaluation.' The Montgomery County, Maryland Appeal As noted, under the Act, state and local governments have no authority to regulate potential health impacts of RF emissions from wireless transmitters provided that those installations comply with federal safety standards. Instead, the responSibil- ity to protect the public from dangerous RF levels lies with the FCC." Given that the FCC has not updated its RF exposure standards since 1996, and that an accelerated 5G deployment on a national scale will involve hundreds of thousands of small cell transmitters in densely populated areas, Montgomery County appealed the Small Cell Order and argues that the FCC had a legal duty under NEPA ancl the APA to reevaluate its RF standards before taking further action on the nationwide implementation of small cells. Montgomery County notes that this duty, is particularly relevant in light of recent research on the health risks that potentially could be associated with SG deployment." RF Exposure Research Much research has occurred since the FCC adopted its existing RF rules back in 1996. Since that time there have been many studies of various non-thermal impacts of RF radiation. These studies have examined a number of RF-relat- ed risks, such as carcinogenicity, DNA damage and genotoxicity, reproductive impacts (e.g., low sperm counts), and neurologic effects (e.g., behavioral issues in children).'4 This research and the associated concerns with nonghermal impacts is world-wide. In 2015, over 200 scientists •from 42 countries, including the United States, sent a letter to the United Nations •and World Health Organization stating tbat "jbja.sed upon peer-reviewed, pub- liShecl research, we have serious concerns regarding the ubiquitous and increasing exposure to EMF generated by electric and wireless devices," including cell tow- ers. Listed RF effects include "cancer risk, cellular stress, increase in harmful free radicals, genetic damages, structural and functional changes of the repro- ductive system, learning and memory deficits, randl neurological disders."" In 2017, several hundred experts from the United States and around the world sent a letter to the European Union requesting a moratorium on SG teeh- nology until the "potential hazards for human health and the environment have been fully investigated by scientists:inde- pendent from industry." They note that SG will contribute to cumulative RP exposures — i.e., an "increase[di expo- sure to radiofrequency electromagnetic fields (RF-EMF) on top of the 2G, 3G, 4G, Vri-Fl, etc. for telecommunications already in place." In light of this research, some scien- tists and academics warn that the FCC's current RF standards, which are limit- ed to addressing thermal effects, may not be protective of human health. By way of example, the Biolnitiative 2012 report (including-updates through 2017) reviews over 1,800 studies showing various adverse health impacts from RP and, based on that research, maintains that the current FCC standards do not adequately protect the public health? As a result, they recommend further research be conducted on non-thermal effects before 5G is widely available. FCC Review of RF Standards Though the Commission has not up- dated its RF exposure standards since 1996, it did initiate a review of those standards in 2013; seeking comments to determine whether its RF expo- sure limits and policies needed to be reassessed." The FCC cited to both its NEPA obligations and other statutory provisions as justifying the review." The Commission subsequently received over 900 submissions in its 2013 docket, many of them focusing on non-thermal risks posed by RF radiation." However, its review of the RF standards stalled and to date •the Commission has not made any determinations in this proceeding (or any other proceeding) on whether the current RF standards remain protec- tive of human health or whether the installation and operation of .5G small cells will pose health risks.21 The FCC's Small Cell Order Prior to the release of the FCC's Small Cell Order, a number of local jurisdic- tions raised concerns about the current RF standards and their ability to pro- tect local citizens in a SG environment. Montgomery County repeatedly urged the FCC to reevaluate the standards and determine if they remain protec- tive of human health. Representatives of the County met with Commission leadership and sled comments request- ing that the FCC delay rulemaldngs aimed at speeding small cell rollouts until the 2013 RF proceedings were completed. Several other local governments and associations, scientists, and individual citizens also requested that the FCC complete the 2013 proceedings before expediting the rollout of SG technol- ogy and otherwise expressed concerns about the substantially out-of-date RF standards.'2 In its Order, the Commission responded to these serious and legitimate concerns about public health with a single terse footnote, stating "Ewle disagree" with concert's raised about RF emissions from 5G small cell fariliries. The FCC empha- sized di-tothing in this Declaratory Ruling changes the applicability of the Com- mission's existing RE emissions exposure Continued on page 16 Seprenaber-Occolx-: 2019/ Vol. 60 No. 5 I 15 June 23, 2021 Item #1 Page 27 of 38 SG First, Safety Second cont'd from page 15 rules."" There was no discussion by the FCC of potential. non-thermal RF effects or any indication when it would complete the 2013 RF proceeding. Questions to be Addressed by the Ninth Circuit The Ninth Circuit will now decide wheth- er by refusing to substantively address RF/public health issues in the Small Cell Orden the FCC violated NEPA and/or the .APA. Specifically, the issues before the Court arc: Did the FCC violate NEPA when it failed to either: (i) explain why that statute does not apply to the Order; or (ii) conduct an environmentahanal- ysis of the RF standards and potential .5G health risks? and Did the FCC violate the APA when it failed to either: (i) explain why it did not consider whether the 1996 RF standards protect against potential SG health risks; or (ii) address rele- vant public health and safety issues when adopting the Order?24 The FCC's NEPA Violation Under NEPA, it is the "policy of the federal government" to "assure for all Americans [a] safe [and] healthful" environmentY In particular, for "major Federal actions significantly affecting the quality of the human environment," the agency must prepare a "detailed state- ment" on the "environmental impact of the proposed action" (called an Environ- mental Impact Statement or "EIS").26 At a minimum, the agency must prepare a preliminary Environmental Assessment to determine whether the potential for such an impact exists and an EIS is therefore requirec1.27 While NEPA does not impose any substantive environmental mandates, it does require that agencies follow certain procedures for assessing environmental impacts of their decisions.28 Unfortunately, the FCC proceeded to implement its Small Cell Order without any environmental analysis and other- wise failed to explain how the Order is somehow exempt from this requirement. Instead, the FCC responded to comments urging it to complete its 2013 review of the RF standards before finalizing the Order by simply stating that it "disagreed" with commenters who opposed the ruling on the basis of concerns regarding RF emissions. There was zero analysis by the Commission as to whether the current RF standards — enacted nearly 23 years ago — will be protective of human health in a new SG environment. The FCC's decision to move forward with SG infrastructure without considering the health effects of RF violates NEPA. The Order itself is a "major federal action," within the scope of NEPA, because it involves "[aid option of official policy, such as rules, regulations and interpretations" pursuant to the APA.29 In the FCC's own words, the Order was an exercise of Com- mission authority to "issue interpretations of the statutory language and to adopt implementing regulations that clarify and specify the scope and effect of the Act."'" Moreoven the Order is a "major feder- al action" because it is an activity that is "potentially subject to federal control and responsibility" or is "regulated" by a Fed- eral agency.' There is no question that the Small Cell Order regulates activities that are subject to Federal control and respon- sibility - it specifically establishes rules that municipalities must follow when reviewing carrier applications for the installation of small cells and the provision of SG services in public rights-of-way." In addition, the Small Cell Order "may significantly affect the quality of the human environment."" SG deployments and op- erations will see the densification of trans- mitters in neighborhoods and public spaces in close proximity to households and businesses. Commenters noted that recent studies, conducted after the 1996 RF stan- dards were adopted, have raised concerns about public health and safety, including potential RF-related risks associated with the anticipated use of SG millimeter waves. No scientific certainty or consensus, however, is required to constitute a signifi- cant effect? The point of NEPA is not for agencies to make the determination that significant effects on the human environ- ment will occur, but rather to "insur[e] that available data is gathered and analyzed pri- or to the implementation of the proposed action."35 Therefore, even if studies have not conclusively shown that RF emissions pose a substantial risk of non-thermal effects, the FCC cannot ignore its NEPA obligations to review and analyze this critical issue. NEPA is designed to force agencies, like the FCC to confront head-on, rather than ignore, these uncertainties.3' What is particularly troubling with the FCC's refusal to review its RF standards is that State and local governments are completely dependent on the FCC for the protection of their citizens from the dangers of RF emissions. In. thc 1996 Act, Congress directed the FCC to promulgate RF standards that are protective of human health, while preempting state and local governments from regulation in this area.37 Ta fact, the FCC has stated repeatedly that only it has the authority under NEPA and other statutory provisions to set and main- tain safe RF exposure levels." Yet despite this mandated obligation to protect the public health, the FCC ignored its NEPA obligations in the rush for nationwide migration to 5G. The FCC's APA Violation Similar to the FCC's shortcomings under NEPA, the FCC also violated the APA . because it failed to consider whether the current RF standards will fully protect • the health and safety of citizens living and working directly adjacent to SG small cells and did not explain why it ignored this relevant factor. Under the APA, courts will strike down agency action as arbitrary and capricious if the agency has, among other things, "entirely failed to consider an important aspect of the problem."" The FCC itself has recognized that it has a continuing obligation to revise the RF stan- dards as research on potential RF health impacts and wireless technology evolves.° In the last 23 years, significant research has been conducted and scientists and academ- ics have warned that the FCC's current RF standards may not be protective of human health. It goes without saying, moreover, that wireless technology has evolved. When the FCC's current RF standards were adopted in 1996 the first ever flip phone had only been on the Market a few months, which boasted cutting-edge features like the ability to receive SIMS text messages and a vibrate function in place of a ring tone. SG technology will look completely different. Whether the 1996 RF standards remain protective of human health, including any 16 I Municipal Lawyer June 23, 2021 Item #1 Page 28 of 38 potential non-thermal risks, is a relevant factor that the FCC should have consid- ered when promulgating the Order. By the Commission's own admission, the Order will hasten the deployment of SG facilities arid the provision of services.'" This means more small cells, in more locations, and sooner than later. Because RF safety issues were implicated by the Small Cell Order it was incumbent on the FCC to determine whether the Order would increase harmful RF exposures in residential and public areas, particularly in light of the fact that countless 5G antennas spaced only about hundred feet apart will be placed in close proximity to homes and businesses.42 The Rest of the Story - The FCC Filially Takes Action Just as this article was going to publica- tion - and with the Montgomery County lawsuit still pending - the FCC announced that FCC Chairman Ajit Pai was circulat- ing a proposal to fellow Commissioners that would maintain the Commission's RE exposure limits. According to the press release, the item would resolve the 2013 Notice of Inquiry that sought public input on whether to strengthen or relax existing RF exposure limits. In addition, the item would establish a uniform set of compliance guidelines - regardless of the type of service or technology involved - for determining how entities will assess their compliance with the RE standards. Finally, the item would seek comment on estab- lishing a rule for determining compliance with the RE exposure standard for devices operating at higher frequencies. Conclusion Regardless of any potential benefits that deployment of SG infrastructure will bring to improve broadband availability across the country, the FCC - the sole authority for health and safety concerns related to RF - should have completed the review of its RF standards before opening the floodgates for the deploy- ment of hundreds of thousands of small cell transmitters. At a bare minimum, the Commission should have explained its decision to summarily reject the comments submitted- by Montgomery County, other local governments and associations, scientists, and individual citizens raising RF concerns. Albert Catalano, Counsel at Keller and = .4 Heckman ILP. has 30 years of experience in telecommunications regulatory, legislative, litigation and transactional matters. His practice focuses on brtiadband and wireless communications, and on 5G/small cells and the use of municipal infrastructure. Prior to entering private practice, Mr. Catalano served as legal counsel with the Federal Communications Commission on wireless commu- nications, information transfer, technology developments, licensing issues and international satellite matters, Eric Gutting is a partner in Keller and Heckman LLP's litigation and environmental practice groups specializing in complex civil and appellate matters, with a focus on toxic tort, environmental, product liabitity, and corporate litiga- tion. He is a former trial attorney at the U.S. Department of Justice, Civil Division, Environmental Torts Section, and his experience includes class actions, mass tort litigation, and agency enforcement proceedings. He currently serves as lead counsel in Montgomery County v. FCC, No.19-70147 (9th Cir) challenging the FCC's Small Cell Order based on potential health and environmental impacts of 56 radiofrequency emissions. OM\ Timothy Doughty is an associate in Keller. and Heckman UP's telecommunications practice group where he focuses on assisting corporate clients and trade associations with various legal and regulatory matters before the Federal Communications Commission (FCC), the FederatAviation Ad- ministration (FAA), courts and state agencies. Mr. Doughty is a graduate of the Catholic University of America school of law and is admitted to practice in Maryland, Colorado, and the District of Columbia. Notes 1.Accelerating Wireless Broadband Deploy- ment by Removing Barriers to Infrastruc- ture Investment, Declaratory Ruling and Third Report and Order, FCC 18-133, WI Docket No. 17-79, WC Docket No. 17-84 (Sept. 27, 2018). 2.Id. at par 1. 3.National Environmental Policy Act of 1969,42 U.S.C. 5 4321, et seq.; Small Cell Order at n.72. 4.See, e.g., FCC, In the Matter of Guide- lines for Evaluating the Environmental Ef- fects of Radiofrequency Radiation, Report and Order, 1996 FCC LEXIS 4081, at *4 (Aug. 1, 1996). 5.See Report and Order, GEN Docket No. 79-144, 100 FCC 2d 543 (1985): Mem- orandum Opinion and Ordet 58 RR 2d 1128 (1.985); see also. ANSI C95.1-1982, American National Standard Safety Levels with Respect to Human Exposure to Radio Frequency Electromagnetic Fields, 300 kHz to 100 GFIz, ANSI, New York, NY 6.See FCC, In the Matter of Guidelines for Evaluating the Environmental Effects of Ra- diofrequency Radiation, Report and Order, 1996 FCC LEXIS 4081, at *7 (Aug. 1, 1996). 7.Id. at '8. 8.Pub. L No. 104-104, 110 Stat. 56 (1996). 9.47 U.S.C. S 332(c)(7)(B)(iv). 10.FCC, OET Bulletin 56, at 8 (August 1999). 11.Id. at 20. 12.Montgomery County, Maryland's Open- ing Brief, at 1 (19-70147) (9th Cit.) ("Brief"), hnps://ws.vw.beyondtelecomlawblog.com/5g- small-cells-and-rf-health-concerns/. 13.1d. at 2. 14.1d. at 12-1S. 15.1d. at15. 16.Id. at 15-16. 17.BioInitiative 2012 - A Rationale for Biologically-based Exposure Standards for Low-Intensity Electromagnetic Radiation (2017), https://bioinitiative.ore, 18.FCC, In the Matter of Reassessment of Federal Communications Commission Ra- diofrequency Exposure Limits and Policies, First Report and Order; Notice of Proposed Rulemaking and Notice of Inquiry, 2013 FCC LEXIS 1257 (Mat 27, 2013). 18 Brief at 19-20. 19.Id. at 22. 20.ld. 21.Id. at 24-26. 23.Small Cell Order at n.72. 24.Brief at 4-5. 25.42 U.S.C. §5 4321, 4331. 26.42 U.S.C. 5 4332. 27.40 C.F.R. 5 1508.9. 28. Am. Bird Conservancy, Inc. v. FCC, 516 F.3d 1027,1032 (D.C. Cit 2008). 29.40 C.F.R. 5 1508.18(b)(1). 30. Small Cell Order at ¶ 21. 33.40 C.ER. $ 1508.18. 32. Brief at 40. 33.42 U.S.C. 5 4332. 34.Am. Bird Conservancy, Inc., 516 E3d at 1033. 35.Found. for North Am. Wild Sheep v. United States Dept. of Agric., 681 17.2d 1172, 1179 (9th Cir. 1982). 36.Brief at 46. 37.See 47 U.S.C. 5 332(c)(7)(B)(iv). .38. Brief at 37-38. 39.Motor Vehicle Mfrs. Asen v. State Farm lviut. Auto. Ins. Co., 463 U.S. 29,43 (1983). 40.Brief at 11-12, 19, 52. 41.1d. at 53. 42.1d. at 54. Pat September-October 2019 Vol. 60 No.5 I 11 June 23, 2021 Item #1 Page 29 of 38 Sent Tuesday, January 28, 2020 11:48 AM To: irenegdnight©earthlink.nt` Subject DOCKET *5 LAWSUITS VS_ FCC yofEugeneOregonetalvFCCetaiDocketNo19703449thCirFeb082019Court?1578065073 NATIONAL LEAGUE OF CITIES Gail A, Karish Joseph Leonard Van Eaton Best Best & Krieger LLP Best Best & Krieger LLP 300 South Grand Avenue 2000 Pennsylvania Ave NW Los Angeles, CA 90071 Washington, DC 20006 [COR LD NYC Retained] [COR LD NTC Retained] Request Filed (ECF) Intervenors City of Arcadia, City of Bellevue, City of Burien, City of Burlingame, City of Gig Harbor, City of Issaquah, City of Kirkland, City alas Vegas, City of Los Angeles, City of Monterey, City of Ontario, City of Piedmont, City of Portland, City of San Jose, City of Shafter, City of Yuma, County of Los Angeles, Culver City and Town of Fairfax in 19-70123, Intervenors City of Arcadia, City of Bellevue, City of Burien, City of Burlingame, City of Gig Harbor, City of Issaquah, City of Kirkland, City of Las Vegas, City of Los Angeles, City of Monterey, City of New York, City of Ontario, City of Piedmont. City of Portland, City of San Jacinto, City of San Jose, City of Shafter, City of Yuma, County of Los Angeles, Culver City and Town of Fairfax in 19-70124, Intervenors City of Arcadia, City of Bellevue, City of Burien, City of Burlingame, City of Gig Harbor, City of Issaquah, City of Kirkland, City of Las Vegas, City of Los Angeles, City of Monterey, City of Ontario, City of Piedmont, City of Portland, City of San Jacinto, City of San Jose, City of Shafter„ City of Yuma, County of Los Angeles, Culver City and Town of Fairfax in 19-70125, 19-70136, Petitioners City of Arcadia, City of Bellevue, City of Burien, City of Burlingame, City of Gig Harbor, City of Issaquah, City of Kirkland, City of Las Vegas, City of Los Angeles, City of Monterey, City of Ontario, City of Piedmont, City of Portland, City of San Jacinto, City of San Jose, City of Shafter, City of Yuma, County of Los Angeles, Culver City and Town of Fairfax in 19-70/44, 19-70146, intervenors City of Albuquerque, New Mexico, City of Arcadia, California, City of Baltimore, Maryland, City of Bellevue, Washington, City of Brookhaven, Georgia, City of Burien, Washington, City of Burlingamer, California, City of Culver City, California, City of Dubuque, Iowa, City of Emeryville, California, City of Gig Harbor, Washiington, City of Issaquah, Washington, City of Kirkland, Washington, City of La Vista, Nebraska, City of Las Vegas, Nevada, City of Los Angeles, California, City of Medina, Washington, City of Monterey, California, City of Ontario, California, City of Papillion, Nebraska, City of Piedmont, California, City of Plano, Texas, City of Portland, Oregon, City of Rockville, Maryland, City of San Bruno, California, City of San Jacinto, California, City of San Jose, California, City of Santa Monica, California, City of Shafter, California, City of Sugarland, Texas, City of Yuma, Arizona, County of Los Angeles, California, League of Nebraska Municipalities, Michigan Municipal League, National League of Cities, Town of Fairfax, California, Town of Hillsborough, California and Town of Ocean City, Maryland in 19-70326, Intervenors City of Albuquerque, New Mexico, City of Baltimore, Maryland, City of Brookhaven, Georgia, City of Dubuque, Iowa, City of Emeryville, California, City of La Vista, Nebraska, City of Medina, BL-145 Sep 24, 2019 June 23, 2021 Item #1 Page 30 of 38 Washington, City of Papillion, Nebraska, City of Plano, Texas, City of Rockville, Maryland, City of San Bruno, California, City of Santa Monica, California, City of Sugarland, Texas, League of Nebraska Municipalities, Michigan Municipal League, National League of Cities, Town of Hillsborough, California and Town of Ocean City, Maryland in 19-70339, Petitioners Bloomfield Township, Michigan, City of Ann Arbor, Michigan, City of Atlanta, Georgia, City of Austin, Texas, City of Boston, Massachusetts, City of Chicago, Illinois, City of College Park, Maryland, City of Dallas, Texas, City of Gaithersburg, Maryland, City of Lincoln, Nebraska, City of Myrtle Beach, South Carolina, City of Omaha, Nebraska, City of Philadelphia, Pennsylvania, City of Rye, New York, City of Scarsdale, New York, City of Seat Pleasant, Maryland, City of Takoma-Park, Maryland, Clark County, Nevada, County of Anne Arundel, Maryland, District of Columbia, Howard County, Maryland, Meridian Township, Michigan, Michigan Coalition to Protect Public Rights-of-Way, Michigan Townships Association, Montgomery County, Maryland, Texas Coalition of Cities for Utility Issues and intervenors City of Albuquerque, New Mexico, City of Baltimore, Maryland, City of Brookhaven, Georgia, City of Dubuque, Iowa, City of Emeryville, California, City of La Vista, Nebraska, City of Medina, Washington, City of Papillion, Nebraska, City of Plano, Texas, City of Rockville, Maryland, City of San Bruno, California, City of Santa Monica, California, City of Sugarland, Texas, League of Nebraska Municipalities, Michigan Municipal League, National League of Cities, Town of Hillsborough, California and Town of Ocean City, Maryland in 19-70341, 19- 70344 Joint Motion for miscellaneous relief [Motion for Expedited Oral Argument and to Separate Arguments]. Date of service: 09/24/2019. [11442651] [19-70123, 19-70124, 19- 70125, 19-70136, 19-70144, 19-70145, 19-70146, 19-70147, 19-70326, 19-70339, 19- 70341, 19-70344] (Van Eaton, Josep BL-161 Jan 14, 2020 R uesz Filed (ECF) Acknowledgment of hearing notice by Attorney Mr_ Joseph Leonard Van Eaton, Esquire for Intervenors City of Arcadia, City of Bellevue, City of Burien, City of Burlingame, City of Gig Harbor, City of issaquah, City of Kirkland, City of Las Vegas, City of Los Angeles, City of Monterey, City of Ontario, City of Piedmont, City of Portland, City of San Jose, City of Shafter, City of Yuma, County of Los Angeles, Culver City and Town of Fairfax in 19-70123, Attorney Mr. Joseph Leonard Van Eaton, Esquire for Intervenors City of Arcadia, City of Bellevue, City of Burien, City of Burlingame, City of Gig Harbor, City of Issaquah, City of Kirkland, City of Las Vegas, City of Los Angeles, City of Monterey, City of Ontario, City of Piedmont, City of Portland, City of San Jacinto, City of San Jose, City of Shafter, City of Yuma, County of Los Angeles, Culver City and Town of Fairfax in 19-70124, 19-7012S, 19-70136, Attorney Mr. Joseph Leonard Van Eaton, Esquire for Petitioners City of San Jose, City of Arcadia, City of Bellevue, City of Burien, City of Burlingame, Culver City, Town of Fairfax, City of Gig Harbor, City of Issaquah, City of Kirkland, City of Las Vegas, City of Los Angeles, County of Los Angeles, City of Monterey, City of Ontario, City of Piedmont, City of Portland, City of San Jacinto, City of Shafter and City of Yuma in 19-70144, 19-70146, Attorney Mr. Joseph Leonard Van Eaton, Esquire for Intervenors City of Baltimore, Maryland, Michigan Municipal League, City of Albuquerque, New Mexico, National League of Cities, Town of Ocean City, Maryland, City of Brookhaven, Georgia, City of Dubuque, Iowa, City of Emeryville, California, City of La Vista, Nebraska, City of Medina, Washington, City of Papillion, Nebraska, City of Plano, Texas, City of Rockville, Maryland, City of San Bruno, California, City of Santa Monica, California, City of Sugarland, Texas, League of Nebraska Municipalities, Town of Hillsborough, California, City of Arcadia, California, City of Bellevue, Washington, City of Burien, Washington, City of Burlingamer, California, City of Culver City, California, City of Gig Harbor, Washiington, City of Issaquah, Washington, City of Kirkland, Washington, City of Las Vegas, Nevada, City of Los Angeles; California, City of Monterey, California, City of Ontario, California, City of Piedmont, California, City of Portland, Oregon, City of San Jacinto, California, City of San Jose, California, City of Shafter, California, City of Yuma, Arizona, County of Los Angeles, California and Town of Fairfax, California and 2 June 23, 2021 Item #1 Page 31 of 38 Attorney Mr. Joseph Leonard Van Eaton, Esquire for intervenors City of Baltimore, Maryland, Michigan Municipal League, City of Albuquerque, New Mexico, National League of Cities, Town of Ocean City, Maryland, City of Brookhaven, Georgia, City of Dubuque, Iowa, City of Emeryville, California, City of La Vista, Nebraska, City of Medina, Washington, City of Papillion, Nebraska, City of Plano, Texas, City of Rockville, Maryland, City of San Bruno, California, City of Santa Monica, California, City of Sugarland, Texas, League of Nebraska Municipalities, Town of Hillsborough, California, City of Arcadia, California, City of Bellevue, Washington, City of Burien, Washington, City of aurlingamer, California, City of Culver City, California, City of Gig Harbor, Washiington, City of Issaquah, Washington, City of Kirkland, Washington, City of Las Vegas, Nevada, City of Los Angeles, California, City of Monterey, California, City of Ontario, California, City of Piedmont, California, City of Portland, Oregon, City of San Jacinto, California, City of San Jose, California, City of Shafter, California, City of Yuma, Arizona, County of Los Angeles, California and Town of Fairfax, California in 19-70326, Attorney Mr. Joseph Leonard Van Eaton, Esquire for Intervenors City of Albuquerque, New Mexico, National League of Cities, City of Brookhaven, Georgia, City of Baltimore, Maryland, City of Dubuque, Iowa, Town of Ocean City, Maryland, City of Emeryville, California, Michigan Municipal League, Town of Hillsborough, California, City of La Vista, Nebraska, City of Medina, Washington, City of Papillion, Nebraska, City of Plano, Texas, City of Rockville, Maryland, City of San Bruno, California, City of Santa Monica, California, City of Sugarland, Texas and League of Nebraska Municipalities in 19-70339, Attorney Mr. Joseph Leonard Van Eaton, Esquire for Petitioners City of Austin, Texas, City of Ann Arbor, Michigan, County of Anne Arundel, Maryland, City of Atlanta, Georgia, City of Boston, Massachusetts, City of Chicago, Illinois, Clark County, Nevada, city of College Park, Maryland, City of Dallas, Texas, District of Columbia, City of Gaithersburg, Maryland, Howard County, Maryland, City of Lincoln, Nebraska, Montgomery County, Maryland, City of Myrtle Beach, South Carolina, City of Omaha, Nebraska, City of Philadelphia, Pennsylvania, City of Rye, New York, City of Scarsdale, New York, City of Seat Pleasant, Maryland, City of Takoma Park, Maryland, Texas Coalition of Cities for Utility Issues, Meridian Township, Michigan, Bloomfield Township, Michigan, Michigan Townships Association, Michigan Coalition to Protect Public Rights-of-Way and Intervenors City of Albuquerque, New Mexico, National League of Cities, City of Brookhaven, Georgia, City of Baltimore, Maryland, City of Dubuque, Iowa, Town of Ocean City, Maryland, City of Emeryville, California, Michigan Municipal League, Town of Hillsborough, California, City of La Vista, Nebraska, City of Medina, Washington, City of Papillion, Nebraska, City of Plano, Texas, City of Rockville, Maryland, City of San Bruno, California, City of Santa Monica, California, City of Sugarland, Texas and League of Nebraska Municipalities and Attorney Mr. Joseph Leonard Van Eaton, Esquire for Petitioners City of Austin, Texas, City of Ann Arbor, Michigan, County of Anne Arundel, Maryland, City of Atlanta, Georgia, City of Boston, Massachusetts, City of Chicago, Illinois, Clark County, Nevada, City of College Park, Maryland, City of Dallas, Texas, District of Columbia, City of Gaithersburg, Maryland, Howard County, Maryland, City of Lincoln, Nebraska, Montgomery County, Maryland, City of Myrtle Beach, South Carolina, City of Omaha, Nebraska, City of Philadelphia, Pennsylvania, City of Rye, New York, City of Scarsdale, New York, City of Seat Pleasant, Maryland, City of Takorna Park, Maryland, Texas Coalition of Cities for Utility issues, Meridian Township, Michigan, Bloomfield Township, Michigan, Michigan Townships Association, Michigan Coalition to Protect Public Rights-of-Way and Intervenors City of Albuquerque, New Mexico, National League of Cities, City of Brookhaven, Georgia, City of Baltimore, Maryland, City of Dubuque, Iowa, Town of Ocean City, Maryland, City of Emeryville, California, Michigan Municipal League, Town of Hillsborough, California, City of La Vista, Nebraska, City of Medina, Washington, City of Papillion, Nebraska, City of Plano, Texas, City of Rockville, Maryland, City of San Bruno, California, City of Santa Monica, California, City of Sugarland, Texas and League of Nebraska Municipalities in 19-70341, 19- June 23, 2021 3 Item #1 Page 32 of 38 70344. Hearing in Pasadena on 02/10/2020 at 09:00 A.M. (Courtroom: Courtroom 3). Filer sharing argument time: Yes. (Argument minutes: 24.) Special accommodations: NO. Filer admission status: I certify that I am admitted to practice before this Court. Date of service: 01/14/2020. [11561976] [19-70123, 19-70124, 19-70125, 19-70136, 19-70144, 19-70145, 19-70146, 19-70147, 19-70326, 19-70339, 19-70341, 19-703441 (Van Eaton, Joseph) June 23, 2021 Item #1 Page 33 of 38 Hector Gomez From: Sent: Cc: Subject Council Internet Email Tuesday, February 18, 2020 9:41 AM Curtis Jackson; City Clerk FW: 59 concerns All Receive - Agenda Item 9 For the Information of the: CIF COUNCIL Date d(CA:,<. CC A CM sx" COO DCM (3) .X7 Original Message From: Stephanie Raish <stephanieraish@gmail.com> Sent: Saturday, February 15, 2020 10:43 AM To: Council Internet Email <CityCouncil@carlsbadca.gov> Subject: 5g concerns Dear Mayor Hall and City Council Members, 5G, the next generation of wireless technology, poses unique risks to our community ranging from scientifically- documented human health and environmental problems i.e. www.americansforresponsibletech.orescientific-studies to property devaluation. While many legislators are under the impression that there is no legal recourse to push back against the unfettered rollout of SG, the attached sample of SG legislative code is evidence that there are in fact many ways to effectively delay, or in some cases, stop 5G antennas from being installed near residences, day care centers, schools, and other sensitive areas. With that said, I respectfully urge you to adopt the sample code found below, in part or in full, to impose restrictions on small cell deployments in Carlsbad neighborhoods." Sincerely, https://8a6b8cd0-359b-4b1b-b042-cdb0cdb8be26.filesusr.comiugd/2cea04_66c5cc09a31045858fa03e31428054b8.pdf Stephanie CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe. 1 June 23, 2021 Item #1 Page 34 of 38 Hector Gomez From: Council Internet Email Sent: Monday, February 10, 2020 9:25 AM To: City Clerk Cc Curtis Jackson Subject: FW: Portland, Oregon Mayor Rallies Support for SG Lawsuit with FCC AU Receive - Agenda Item It For the Information of the: CITY COUNCIL Date\91,00 CA cc A From: Karen Rich <Dakini22459©protonmailcom> cm \e- coo DCM (3) )<- Sent: Monday, February 10, 2020 8:58 AM To: Matthew Hall <Matt.Hall@carlsbadca.gov> Cc: Priya Bhat-Patel <Priya.Bhat-Patel@CarlsbadCA4ov>; Cori Schumacher <Cori.Schumacher@CarlsbadCA.gov>; Keith Blackburn <Keith.Blackburn@carlsbadca.gov>; Celia Brewer <Celia.Brewer@carlsbadca.gov>; Scott Chadwick <Scott.Chadwick@carlsbadca.gov>; Council Internet Email <CityCouncil@carlsbadca.gov> Subject: Portland, Oregon Mayor Rallies Support for 56 Lawsuit with FCC Dear Mayor Hall, Here is an article describing the action Portland Oregon's Mayor Ted Wheeler is taking to resist the Federal Communications Commission (in conspiracy with the Telecommunications Industry) illegal arid unconstitutional mandates regarding 46-5G/Small Cell' infrastructure: We must stop the land, power and money grab and reclaim local control over local assets. You and the Carlsbad City Council have the legal authority resist the FCC, Danville and Davis, CA are taking similar action. "I've said It before and say it again today: the 'FCC's attempt to assert national control over local infrastructure traces is a misguided invasion of local authority and contrary to the law," Wheeler said. Sincerely, Karen Rich, Constituent Carlsbad CA 92009 CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe. 1 June 23, 2021 Item #1 Page 35 of 38 Hector Gomez From: Council Internet Email Sent: Friday, February 7, 2020 4:06 PM To: City Clerk Subject FW: 5G Scare Attachments: Carlsbad 5G.pdf From: Michael McGrady <mcgradym@roadrunner.com> Sent: Friday, February 7, 2020 8:12 AM To: Council Internet Email <CityCouncil@carlsbadca.gov> Subject: FW: 56 Scare Since Mr. Blackburn responded that you have been hearing from people already, I thought we would reach out to the entire council on this subject. We received the attached flyer which is saturated with falsehoods, mischaracterizations, inaccuracies and fear- mongering. As we said below, this movement is the is the technological equivalent of the anti-vaxer movement. There is an astonishing amount of credible literature admonishing this movement. We shared but one, a well written article by the New York Times: The 56 Health Hazard That Isn't How one scientist and his inaccurate chart led to unwarranted fears of wireless technology. https://www. nytimes.com/2019/07/16/science/5e-cellohones-wireless-ca nce r.htm I Our society grants liberty to speak out against government, including even the ludicrous suggestion that the City Council (having been bought off) has joined forces to give the Carlsbad citizenry brain cancer. However, it does not give them the right to claim to speak for all citizens. It is with heartfelt pleading from those of us too busy to fight against such nonsense (including anti-vaxer, flat-earth society, fluoride in the water, etc.), that you not think them the majority. People like the two of us and our fellow citizenry can, at times, become a mob, with all the ingrained aggressiveness, or fear-induced panic, or self-seeking avarice that our human nature can produce. However, we are a democratic republic; knowing our self-seeking nature, we have granted limited sovereignty to people who by intelligence, reason and contemplation will act in our best interest, even if it appears they stand against the mob. Socrates would not put ideas upon paper as it would destroy memory. In the 16th century Conrad Gessner didn't like the printing press because it would lead to information overload. In 1825 the mob widely feared train travel because at the incredible speed of 30 miles per hour, you would endure a gruesome death of the body melting. The first telephones at minimum would give you deadly shocks and at maximum they were conduits for evil spirits (okay, they were right about robo-calls). In 1936 radio was to be announced as the scourge of the written page and was strongly protested. The first wi-fl roll-outs included the same deathly threats as today's missive. Though you have little control in the first place regarding this matter, yet still be patient, be engaging with them, but please don't amplify their voice, their cause or think them the majority. Laura and Michael McGrady 2741 Berkeley Ave Carlsbad, CA 92010 1 June 23, 2021 Item #1 Page 36 of 38 CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe. Disclaimer: This message and any files it may contain are confidential and/or privileged information. It is intended solely for the use of the individual or entity to whom they are addressed. If you are not the intended recipient, you are hereby notified that any use or dissemination of this communication is strictly prohibited. If you have received this email in error, please notify us immediately, then delete this email. From: Keith Blackburn <Keith.Blackburn@carlsbadca.gov> Sent: Thursday, February 6, 2020 8:56 PM To: Michael McGrady <mcgradvmProadrunnercom> Subject: Re: 5G Scare Dear Laura and Michael, Thank you for taking the time to send the email. I have heard a lot of people blame Carlsbad for allowing 5G. First point, we have not voted on the subject. Second point, we have almost no control because it is regulated by the federal communications commission. I am going to share your email with our city manager so our staff can supply you with up- to-date information as to what is going on in Carlsbad. Sincerely, Keith Blackburn Sent from my iPhone On Feb 6, 2020, at 7:01 PM, Michael McGrady <mcgradymProadrunner.com> wrote: Mr. Blackburn: I just had delivered to my door a flyer decrying the city council's malicious intent to roll out a 5G network in Carlsbad. This is the technological protest equivalent of anti-vaxers. The New York Times more than most other media outlets would never miss an opportunity to eviscerate government and corporate America. This is their expose from last July: The 5G Health Hazard That Isn't How one scientist and his inaccurate chart led to unwarranted fears of wireless technology. https://www.nytimes.com/2019/07/16/science/Sg-cellphones-wireless-cancer.html Just because some of us have jobs and no time for this nonsense, please do not assume most of us share the same voice as those involved in this uprising. Thanks for your time. Laura and Michael McGrady 2741 Berkeley Ave Carlsbad, CA 92010 Disclaimer: This message and any files it may contain are confidential and/or privileged information. It is intended. solely for the use of the individual or entity to whom they are addressed. If you are not the intended recipient, you are hereby notified that any use or dissemination of this communication is strictly prohibited. If you have received this email in error, please notify us immediately, then delete this email. 2 June 23, 2021 Item 41 Page 37 of 38 Dear Carlsbad Neighbors, Did you know the City of Carlsbad is planning to allow construction of new 5GPSmall Cell' towers every 100-500 ft throughout Carlsbad and La Costa neighborhoods? Did you know the radiation emitted from these towers has been classified as a carcinogen by the World Health Organization and is especially harmful to the health of children, the elderly and people with chronic diseases? FACT: the safety guidelines for cellular wireless technology has not been revised by the FCC since 1996 - 24 YEARS! Did you know that dozens of cities in Northern California are scrambling to keep 5G/Small Cell towers out of their neighborhoods? The technology elite who helped invent this technology do not want it around them and are sending their children to Waldorf schools where there is NO technology. Carlsbad and cities across the nation are being bullied by Big Telecom and the FCC to adopt technology that will compromise the beauty, health, and security of our communities. It is the specific 5G technology being used that will allow our data to be collected. These towers will allow companies to categorize our data, and sell our data at the expense of our children's health. Please get informed and involved. Together we CAN make a difference. Attend our local meetings announced on our Facebook page, Stop 5G Carlsbad. Check out the many scientific studies at http://www.5(3grisi.aspnl, email questions to Karen, dakini22459@protonmaif.com Take the time to email each city council member. Make appointments with them. They are available for 15 minute sessions weekly. They must hear from you! Carlsbad Citizens for Safe Technology June 23, 2021 Item 141 Page 38 of 38 Tammy Cloud-McMinn From: Sent: To: Subject: Attachments: mari1415@charter.net Wednesday, June 23, 2021 11:42 AM City Clerk Comments for June 23, 2021 City Council Meeting Carlsbad City Council - 5G.docx All Receive - Agenda Item ttl,_ For the Information of the: CITY COUNCIL Dat CA ir---CC CM ACM ---b-EM (3) Kindly distribute to the city council members and enter into the public record for today's meeting. tThank you, Mari! Adrian 760 918 0680 CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe. 1 To: Members of the Carlsbad City Council From: Maril Adrian, - Carlsbad Resident — 5218 Shelley Place — 760 918-0680 Date: June 23, 2021 Re: Concerns Regarding 5G Small Cell Tower Deployment in Carlsbad There is no way within the scope of these comments that I can provide a comprehensive list of the many issues surrounding the deployment of 5G small cell towers in the Carlsbad community. However, our neighboring city, Encinitas, in response to public input, made some major amendments to their original policy (No. C035). Item 10A of the Encinitas City Council minutes of October 30, 2019 goes into detail regarding their findings and resolution, which can be found on the following website: https://encinitas.granicus.com/GeneratedAgendaViewer.php?yiew id=7&clip id= 2025 On September 23, 201 9 at a public forum held at the Encinitas Senior Center, 200 members of the Encinitas community either voiced or wrote their concerns about the 5G small cell towers. These conc-erns included: 1.Restrict small wireless facilities in residential areas,-day care centers, schools and hospitals 2.Adverse health impacts (the FCC reaffirms compliance with their order regardless of health impacts; this is criminal, but there is little hope at this point in time) 3.Impacts to property values 4.Fire hazards 5.Concerns with the Telecom Law Firm (based on feedback that the law firm did not advocate enough for the community's best interests. The theme of those comments was for the city of Encinitas to have an ordinance that is more protective of residents. The original policy (C035) with its final amendments are included in the minutes on the website noted above. My point in bringing this matter to your attention is to urge you to recognize that you have more power than you think you have. As a long time resident (almost 15 years), I believe that we have a unique community and one that (not only in spite of, but because of the turmoil going on throughout the state, the country and the world) is worth protecting. I also believe that major decisions that affect the community should be made with widely dispersed information and widely promoted forums inviting community members to participate. If we can send out a survey on whether or not to open beaches, it would seem that something that affects the lives of everyone in this community would be worth pro- actively collecting feedback. People are busy, People are also suffering due to the economic hardships imposed by the state/federal mandates. We elected city council members to represent and act in the best interests of our needs, not based on outside mandates or personal biases, but as true representatives of the people. And when it comes time to protest or push back against these mandates, we expect that, too. 5G offers faster communication; however, what is still being ignored, are the long term effects of this technology and its negative potential and consequences. If Encinitas can take steps to ameliorate any harm to its people, Carlsbad should do no less. Tammy Cloud-McMinn From: Karen Rich, CHD/CA-SAN <KLR1959@protonmail.com> Sent: Wednesday, June 23, 2021 11:55 AM To: City Clerk Subject: Comments for the Record RE: 5G CELLULAR TECHNOLOGY AND WIRELESS COMMUNICATION FACILITIES WORKSHOP Dear Carlsbad City Council and Staff, I am very interested in participating in a '5G CELLULAR TECHNOLOGY AND WIRELESS COMMUNICATION FACILITIES WORKSHOP' but notice of less than a week is simply not ample time to prepare. This council and staff have been promising Carlsbad citizens a workshop of this nature for over a year - to rush it in this manner does not do justice to the extreme seriousness of the issue i.e. 1. In January 2021, 11.500 pieces of scientific proof of wireless risks/harms were presented to a federal court in order to compel the FCC to update their 25 yr old health and safety guidelines. Unfortunately the FCC is not being legally forced at this time to change their guidelines but the court's official position stated that "the FCC has not been due diligent on behalf of protecting the public from wireless risks and harm." 3.We all know now this is not about 'small cell' 4GLTE/5G towers...that was a Telecom Industry/FCC diversionary tactic. The real issue is about accessing the impact of ALL new 'Smart City Grid/Internet of Things' infrastructure that includes but is not limited to: 5G wireless technology, Artificial Intelligence technology and OTARD technology. 4.Smart City Grid/Internet of Things infrastructure exposes all living beings and the environment to unprecedented levels of microwave radiation along with unprecedented capabilities for tracking, surveillance and data harvesting. The health, privacy, safety and security of Carlsbad citizens is at stake. To critically thinking people, The Precautionary Principle matters where this infrastructure is concerned. 5.There are state, national and international lawsuits being filed regarding the irresponsibly rushed installation of Smart City Grid/Internet of Things infrastructure...the Carlsbad City Council and staff can be on the right side of technology policy now or be held accountable later for the harms caused to the Carlsbad citizens to whom you have taken an oath to serve. I submit this email and all comments made herein for the record and request confirmation of receipt. Sincerely, Karen Rich, Constituent Carlsbad, CA 92009 1 Tammy Cloud-McMinn From: Irene Tsutsui <irenegdnight@earthlink.net> Sent: Wednesday, June 23, 2021 11:59 AM To: City Clerk Subject: Comments for the Record RE: 5G CELLULAR TECHNOLOGY AND WIRELESS COMMUNICATION FACILITIES WORKSHOP Sending to you so that my comments will be presented by 2:00 pm today by your staff re the 5G workshop scheduled at 4PM. From: Irene Tsutsui [mailto:irenegdnight@earthlink.net] Sent: Wednesday, June 23, 2021 10:55 AM To: 'matt.hall@carlsbadca.govs; ikeith.blackburn@carlsbadca.govi; 'cori.schumacher@carlsbadca.govT; 'priya.bhat- patel@carlsbadca.gov'; teresa.acosta@carlsbadca.govi; 'scott.chadwick@carlsbadca.gov'; Jason.Haber@carlsbadca.gov' Cc: 'Barbara.Engleson@carlsbadca.gov' Subject: Comments for the Record RE: 5G CELLULAR TECHNOLOGY AND WIRELESS COMMUNICATION FACILMES WORKSHOP Importance: High Dear Mayor Hall, City Council and Staff, I was given short notice of the 5G CELLULAR TECHNOLOGY AND WIRELESS COMMUNICATIONS FACILITIES WORKSHOP last Friday. The 15 minute time slot for presentations does not adequately address the serious issues pertaining to Smart 4G/5G wireless facilities. Jason Haber indicated in person council meetings could provide another opportunity for the public to participate in the fall (August/September). I conveyed to Jason that citizens had planned last year (before COVID shut down meeting attendance) to have people with high 5G and wireless technology expertise make presentations at the workshop we had consistently requested in 2019 and 2020 at council meetings via citizen presentations and petitions that were submitted and at the meeting I and Jay Varon had with Jason Haber and Gary Barboni last spring. The FCC's official position after reviewing over 11,000 pieces of scientific proof of harm from wireless radiation exposure was: "...the FCC has not been due diligent on behalf of protecting the public from wireless risks and harm." It is thus vital to have a new Wireless Telecommunications Facility (WTF) ordinance framed that does not ignore the science. I had previously suggested following the Precautionary Principle. As part of this approach at the spring meeting I and Jay had with Messrs. Haber and Barboni, I suggested forming a subcommittee consisting of 2 or 3 Carlsbad citizens who would help frame any new WTC ordinance so as to avoid legal challenges that are bound to ensue without proper safeguards being adopted to ensure the health and safety of citizens. Please give this suggestion serious consideration. The surcharges we have paid in our phone and local utility bills for decades that were supposed to be used to develop safe, hard-wired fibre optic networks...I ask, Carlsbad City Council WHERE is that money?! Cheryl Scheurer, PhD Testimony Opposing AB.537 at the Senate Governance and Finance Committee "We-the-People want wired communications for broadband — fiber-optics to the premises — for which we've already paid on our phone bills from 1995 to the present ... NOT hazardous wireless broadband deployed far too close to homes and, using excessive power." https://wirecalifornia.orgicheryl/ In the absence of an expanded platform for citizen input on the 23rd, please allow me to convey some important considerations which have been outlined by Andrew Campanelli, the attorney who has represented individuals and municipalities on the subject of adoption of wireless facility infrastructure ordinances by various municipalities. I spoke with him prior to COVID last year as he was recommended as the foremost experienced expert on this subject. His position is that cities should adopt the policies which will avoid legal conflict that typically results from inadequate guidelines which fail to guarantee compliance to FCC radiation limits by wireless site developers and carriers. A good city ordinance is typically 40 to 50 pages long. The City does have the power to control where facilities go. If you do not regulate with that in mind, the FCC won't regulate wireless facilities as they have no idea where the facilities are located given the broad 200 ft height parameter. Cities cannot afford to ignore the health dangers at the non-thermal level that are already established via peer review studies; contrary to the idea that health hazards is not the final arbiter of establishing legal boundaries, if push comes to shove, Mr. Campanelli says they can and are being used to prevent the adoption of overly lax city ordinances. As a result cities such as Petaluma, Berkeley and Burbank have restrictions on the placement of wireless facilities and/or testing requirements which limit the ability of WTF owners to install WTFs where they are not needed or would pose a safety risk. He says the first priority is the City needs to sufficiently codify legislative intent. You need to start out by describing the potential adverse impacts; you want to say the City ensures that Wireless Telecommunication Facilities are placed in a way that doesn't necessarily cause adverse impacts on aesthetics, reduction in property values, or cause damage as a result of such things as insufficient fall zones, structural failures or fires. Secondly, guidance and specific conditions must be laid out to get maximum FCC compliance. There is typically a lack of objective data as a result of inadequate or improper information submitted by site developers (or carriers) on the FCC Compliance Report and associated reports. Mr.Campanelli reports that site developers do not typically apply for the best locations; their locations may not even be necessary to provide the best and safest wireless service. According to Mr. Campanelli, 90% of the FCC Compliance Reports submitted by site developers provide false and misleading information such as distance specifications or gap claims of dropped service. Propagation maps are often bogus. If the planning board does not know how to read the reports accompanying wireless facility applications, they can miss the discrepancies. Thus the City must give the planning board guidance as to what type of evidence they should ask for so they can analyze and understand what is given to them. The goal is for the planning board to understands when they see a false document. The important part is for the wireless company to give the planning board proof. Some of Mr. Campanelli's suggestions for giving proper guidance to the planning board are as follows: ESTABLISHING A NEED FOR THE FACILITY: Mr. Campanelli said he has successfully secured many application denials when the site developer cannot show that the facility is actually necessary. There should be a provision that establishes if the WTF is actually necessary. If the City requires probative evidence to be submitted to support a Wireless Telecommunications Facility (WTF) zoning application or special use permit, the less legal challenges you will incur as a result of egregious deficiencies, misrepresentations and application errors. REQUIRING REAL OR SELF-INSURANCE: Utilizing the Precautionary Principle protects the City im making the wireless facility owner responsible for the hazards that may occur as a result of structural failures, insufficient fall zones and fires that erupt at wireless facility sites. In the case of the Malibu fire in 2007 a California Public Utilities Commission investigation concluded that the poles were so overloaded with electrical and telecommunications wires and other equipment that they broke in winds they should have been able to withstand. Malibu Mayor Andy Stem said the report highlights a serious problem. No one, he said, appears to be taking ultimate responsibility to ensure that power poles do not become overloaded."There should be an investigation, with a log for each additional utility showing they've done a weight-load check," Stern said. "There's a huge problem and no one is addressing it. I think these [poles] are ticking time bombs." https://www.latimes.com/archives/la-xpm-2009- may-06-me-powerlines6-story.html. The City can require the names of the individual principal WTF 2 owners stated on the applications who will be responsible in the event of a facility hazard causing damage. You want to avoid the City having to provide insurance and coming up with the money to cover the damages. The entity that has the funds to afford to cover the damage should be on the line instead of the City.. OVERSIGHT ON SITE DEVELOPERS. A.Site developers must provide a legitimate propagation map that can be verified; the City should ensure oversight so as to prevent bogus propagation maps, FCC Compliance Reports and visual impact analyses that would be unwittingly approved by the City. . B.Identify the planning board that is given the authority over such documents as special use permits. What kinds of factual determinations and probative evidence do the applicants have to provide that back up their statements and representations? The planning board must make some determination as to how it determines whether or not the information submitted by the site developer is legitimate. Failure to do so limits local control and allows the site developer to win their case by default in the event of a dispute to the detriment of citizens and local businesses. C.Specify the necessary notice requirements applicants must be required to submit to residents or businesses before an application can be approved; example, 30-60 days advance notice and whom to contact with health concerns. D.The City wants to retain the maximum power in the placement of smart cell antennas and towers by laying out specific guidance requirements; not doing so gives too much leeway to site developers with negative impact on citizens. COMMON FRAUDULENT CLAIMS: Mr. Campanelli addresses the most common fraudulent claims by site developers. He says that 40% of the time the stated specifications made by site developers exceed the acceptable FCC radiation limits. He says this is typically not done by mistake. A.Claims of compliance with the wrong standard. a) General population radiation exposure limit and Occupational exposure limit (for people who work on towers and have made a conscious decision to work on towers). The radiation limit for occupational workers is higher than the general population radiation exposure limit. The occupational exposure limit may be used improperly to qualify for the general population radiation exposure limit creating a disparity. Make sure there is a clearly defined alignment between the standard represented by the WTF owner and the factual data to support it so there is no question the FCC radiation limits are not being exceeded. B.Discrepancies in meeting distance requirements. Mr. Campanelli says the vast majority of smart cell antennas and towers are below 200 ft in height. These facilities tend to be unregulated and the FCC has no idea where the equipment is nor the level of radiation emanating from the equipment. Unless someone makes a phone call and saysh/she measured the radiation, said radiation level is generally not tested thus Mr. Campanelli has found that many exceed the FCC limits. Local governments must provide the first line of resistance. To prepare a false FCC compliance report, which shows the level of microwave radiation will be a fraction of what it will actually be, all they have to do is start with a false distance factor The easiest way to prevent a false calculation is to recognize a false distance factor. When the applicant gives the town an FCC compliance report, they have to calculate the level of microwave radiation to which they will expose people. The reason for such a report is that the WTF doesn't exist yet.. The first factor they have to consider is how close someone can get to the Wireless Telecomunications Facility (WTF). The closer someone gets to a WTF, the greater the level of microwave radiation to which they get exposed. 3 Example, you have a cell tower going inside a church steeple 60 to 80 ft above ground. The site developer states that distance is within FCC guidelines. However, it turns out tourists are regularly viewing the steeple at a close range of two feet. All the site developer has to do is specify 60 feet so as to qualify, but that results in exposing tourists to dangerous radiation levels. The planning board must ensure the legitimacy of distance parameters by whatever measures is deemed suitable to prevent misleading information from being submitted and by providing a means to scrutinize distance specifications submitted on a WTF application. Some cities have enacted testing requirements since no one typically inspects WTFs thus safeguards are recommended as follows: a)Self-paid testing by local government which enacts an ordinance saying the City (utilizing an RF engineer) will randomly test facilities in its jurisdiction once a year; the RF engineer is going to test without informing the facility owner. If the latter's installation exceeds the radiation limit, a hearing is scheduled and the facility owner must inform the City within 30 days why he did not disclose that the radiation limit exceeds the FCC limit and why he should not be expected to tear down the facility before the City compels the facility owner to remove it. b)The facility owner pays for the test. Some towns in California started enacting testing requirements eight years ago, among them Calabasas, California. Mr. Campanelli says that the jurisdictions that enact testing requirements such as Berkeley and Burbank have not incurred any law suits. c)Calabasas has enacted a provision that any time a citizen can test a wireless facility and if he/she finds (with an RF engineer) the radiation exceeds the FCC limits, a law suit can be pursued and if the claimant proves FCC limits have been exceeded, claimants attorney fees are included in remedying the problem for the benefit of the claimant. Regular testing is a good way for the City to avoid litigation. C. Gap claims and miscalculations. a)The wireless carrier may suffer from a gap in its personal wireless services. b)The proposed installation is the least intrusive means of remedying that gap and there is no possible less intrusive alternative location If — and only if — they can prove those two things, then the municipality has to issue the permit for the WTF. BUT, the important part is to make the applicant prove these two points with substantial written evidence in the public record. Usually, when it is a site developer, such as Crown Castle, it is not the best location. So local governments have to force the applicant to give them probitive evidence, just like anybody else would. The applicant will come in with propagation maps, many of which are bogus. Without the data behind the maps, the municipality does not know if the propagation map is worth the paper it is written on. The truth is that no Federal Court would take a propagation map without verification. Sophisticated local governments know what to ask for so they can control, for the most part, where Wireless Telecommunications Facilities go by laying out specific probative evidence requirements. A drive test can be done, and it is a very cheap process. They take take a phone [or RF meter], attach a recording device and they drive through town. The recording device records the signal strengths every few milliseconds and it will give you a precise reading of all the signal strengths on the streets of the town. That hard data will show you if there is a gap in telecommunications service, where it is and what it's boundaries are. If a wireless carrier has a significant gap, they will be the one applying for the cell tower or the WTF... If the town denies an application because of aesthetics, and an applicant has said we have a significant gap and the town does not find whether or not the applicant proves there is a gap, then the town loses by default. Under the federal law, any denial of a cell tower must be based upon substantial written evidence.The town wants to say "We deny the application because of an adverse effect on property values and the evidence we have is this property owner brought in a letter from a professional, a real estate broker or an appraiser, saying this tower will reduce the value of your house by 20-30%. if the City does nothing (no testing, no oversight) or puts little or no responsibility on the WTF owner to test equipment, submit verifiable distance specs and legitimate maps and visual impact reports), site developers and carriers will be 4 encouraged to submit applications and reports they know will not be scrutinized which lack of scrutiny are bound to cause negative impacts on citizens' health, lifestyle, safety and well-being as well as lower property values. There are key sections of the Telecommunications Act which merit careful review. Rather than submit them here, I will endeavor to submit those separately if not by the 2311, then as soon as is feasible with comments. One last word on the issue of protecting citizens' health. Mr. Campanelli says that the way they are applying the TCA as is currently being applied is violating our right of self-defense. They are preventing us from exercising our right of self-defense in our own homes. There is a real levels of harm being reported to him daily by citizens across the nation, and the overall state of things cannot just keep going along as they are. Mr. Campanelli feels that the time is coming soon when an American Disabilities Act (ADA) ease will present itself to drastically change the complexion of the TCA. I did not address the ADA issue above; however, I mention its importance in light of the self-defense issue since the two are related, if not on direct technical grounds, they are on moral and ethical grounds. The City of Carlsbad City Council and staff must choose which side of the pendulum they are swayed to act. On the one is catering to the hue and cry for Smart City and Internet of Things which will expose all living beings to horrendous levels of microwave radiation as well as unprecedented levels of surveillance and the transformation of citizens into data commodities to be tracked 24/7 and bought and sold to the highest bidder; On the other side, applying the Precautionary Principle to infrastructure policy will reflect the caution that is essential to preserve the safeguards citizens expect from their elected officials.. Given the litigious environment state, national and global governments are experiencing, rushing through an irresponsible ordinance for WTFs should be avoided in order to fulfill your highest oath to serve the citizens of Carlsbad. I plan to request a published guideline by Mr. Campanelli which one of the 5G citizen organizations may be able to provide and will submit it to the City as soon as I receive it. I submit this email and my comments herewith for the record and request confirmation of receipt of same. Sincerely, Irene Tsutsui, Constituent Carlsbad, CA 92009 CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe. 5 Tammy Cloud-McMinn From: David j Freund <davidjfreund@gmail.com> Sent: Wednesday, June 23, 2021 1:53 PM To: City Clerk Subject: Fwd: Comments for the Record RE: 5G CELLULAR TECHNOLOGY AND WIRELESS COMMUNICATION FACILITIES WORKSHOP Forwarded message From: David j Freund <davidifreund@gmail.com> Date: Wed, Jun 23, 2021 at 1:47 PM Subject: Comments for the Record RE: 5G CELLULAR TECHNOLOGY AND WIRELESS COMMUNICATION FACILITIES WORKSHOP To: <matt.hallPcarlsbadca.gov> Cc: <keith.blackburn@carlsbadca.gov>, <cori.schumacher@carlsbadca.gov>, <priva.bhat-patel@carlsbadca.gov>, <teresa.acosta@carlsbadca.gov>, <scott.chadwick@carlsbadca.gov>, <Jason.Haber@carlsbadca.gov>, <Barbara.EnglesonPcarlsbadca.gov>, Irene Tsutsui/Cbd <irenegdnight@earthlink.net> Mayor and City Council, I am very interested in attending upcoming meetings about the wireless technology workshop. I just found out and it was absolutely too short of a notice for me to gather myself together to participate in this. Thank You, David Freund David Freund 760.533.7326 David Freund 760.533.7326 CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is 771 1