HomeMy WebLinkAbout2021-12-14; City Council; ; Amendments to City Council Policy No. 64 to make it consistent with Federal Communications Commission regulations and to update the guidelines for small wireless facilitiMeeting Date: Dec. 14, 2021
To: Mayor and City Council
From: Scott Chadwick, City Manager
Staff Contact: Corey Funk, Associate Planner
corey.funk@carlsbadca.gov, 760-434-4645
Subject: Amendments to City Council Policy No. 64 to make it consistent with
Federal Communications Commission regulations and to update the
guidelines for small wireless facilities
District: All
Recommended Action
Adopt a resolution amending City Council Policy No. 64 - Wireless Communication Facilities to:
•make it consistent with current Federal Communications Commission regulations
•modify and supplement the design guidelines and processing procedures that apply to
the installation of small wireless communication facilities
Executive Summary
City Council Policy No. 64 - Wireless Communication Facilities was adopted on Oct. 2, 2001 and
last amended on Sept. 26, 2017. It was issued to guide the public, applicants, boards and
commissions and staff in reviewing the placement, construction and modification of the
wireless transmission facilities used for digital communication networks. Federal and state laws
continue to significantly constrain the ability of municipal governments to oversee and regulate
the installation of these devices.
There have been recent changes in state and federal law and in cellular technology since the
last update to City Council Policy No. 64, including updated guidance issued by the FCC in 2018.
Staff have prepared proposed amendments to the City Council policy to align this policy with
these regulations. The amendments also establish aesthetic guidelines to be used in evaluating
permits for small wireless facilities, as allowed by law.
City Council Policy No. 1 requires a council resolution that receives four affirmative votes for any
amendments to City Council policies.
Discussion
Background
Various federal and state laws restrict the ability of local governments like the City of Carlsbad
to exercise discretion over wireless communication facilities. Some of these laws impose limits
on a city’s processing timelines, or requirements for such permits. These timelines are known as
“shot clocks.” Others impose limits that narrow or eliminate certain reasons to deny an
application. For example, a local government cannot regulate the placement, construction, and
modification of wireless faculties based on any potential environmental effects of radio Dec. 14, 2021 Item #16 Page 1 of 252
frequency emissions (Federal Communications Act of 1996). This is especially applicable as the
industry transitions to 5G, the fifth generation of technology standards for cellular wireless
communication. 5G technology is expected to primarily use small wireless facilities.
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
installations of small wireless facilities in the public rights of way. (Code of Federal Regulations,
Title 47 – Telecommunication, Section 1.6002(l)) The FCC released an order in 2018 that
interpreted key provisions in the Telecommunications Act. This order defined the size of small
wireless facilities, which are summarized as a facility:
• That is mounted to a structure no more than 50 feet in height, or is 10% taller than an
adjacent structure, or extends an existing structure
above 50 feet or by more than 10 % (whichever is
larger)
• That uses an antenna that is no more than three
cubic feet in volume
• For which all associated equipment is no more than
28 cubic feet in volume
The order also:
• Restricted a local government’s ability to prohibit
facilities within its jurisdiction
• Limited the compensation local governments may
receive from wireless providers for access to public
rights of way and government-owned infrastructure
• Significantly curtailed local aesthetic regulations over wireless facility placement and
design
• 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
For additional background on recent changes to federal and state law applicable to wireless
communication facilities, and their relationship with anticipated technology changes including
5G antennas, please see the staff report and presentation from the City Council Wireless
Workshop on June 23, 2021 (Exhibits 2 and 3).
Changes in state regulations
Several new state bills on wireless communication facilities have been introduced and one was
recently adopted. On Sept. 29, 2020, Gov. Newsom signed Assembly Bill No. 2421, which
mandates expedited local approval for standby power generators at wireless towers. The law,
now in effect as California Government Code Section 65850.75, borrows from concepts in the
FCC’s rules, but creates new processing requirements for local governments that only apply to
Dec. 14, 2021 Item #16 Page 2 of 252
this narrow class of applications. Other bills have been proposed in the last several years, but
have not been signed into law.
Proposed amendments to City Council Policy No. 64
City Council Policy No. 64 includes guidelines for the review of these facilities that were
adopted to strike a balance between complying with applicable laws while also closely
protecting the authority reserved to the city. 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 proposed amendments (see Exhibit 3) include:
• New category for small wireless facilities: Consistent with the FCC order, the revised
policy establishes a new category of wireless communication facilities for small wireless
facilities. A permit processing table and definitions are added to the policy to help
differentiate the different types of wireless communication facilities.
• Permit process: The FCC order allows small wireless facility to be installed in the public
right of way of roads, as well as outside of the right of way on public or private property.
The vast majority of small wireless facilities are expected to be installed in the city’s
right of way. As proposed by the policy, applications for small wireless facilities will be
processed by an administrative right of way permit issued in compliance with the
federally mandated review times. No change is proposed for applications of traditional
wireless communication facilities, which can also be referred to as “macro” facilities,
and applications for these facilities will continue to be processed with conditional use
permits, as required by the existing policy. The table below outlines the types of
facilities and approval required in the draft City Council policy. Requirements for permits
for the addition of generators and small facility changes, and for coastal development
permits, which are required for sites in the city’s Coastal Zone, are included in Exhibit 3
(Table A).
Facility type Location Permit Decision maker
Wireless
communication
facilities
Public or private
property Conditional use permit1 Planning Commission
Right of way Right-of-way permit,
conditional use permit1 Planning Commission
Small wireless
facility
Public or private
property
Minor conditional use
permit2 City Planner
Right of way Right-of-way permit Engineering Manager
1Some Wireless communication facilities qualify for a minor conditional use permit if they comply with preferred and stealth design
criteria, and are approved by the City Planner.
2A zoning code amendment for various topics is planned for 2022. It is to include language that will allow for small wireless facilities on private and public property to be processed with a building permit.
Dec. 14, 2021 Item #16 Page 3 of 252
• Public notices: Due to the very short permit review time frames imposed by the FCC, the
policy amendment does not propose public notices for the installation of small wireless
facilities. The city could include requirements for public notices, but, due to the federal
regulations, there are only limited cases in which a local jurisdiction is able to consider
and make modifications to permits. An option for additional noticing to be completed by
an applicant is included in Exhibit 4. Staff supports the recommendation on having
additional public noticing.
• Locations: The 5G technology small wireless facilities typically provide coverage over
smaller areas than macro sites (approximately a 500- to 1,000-foot radius) and therefore
will likely require the installation of many such facilities throughout the city. Due to the
very small coverage areas, the proposed revisions exempt small wireless facilities from
the preferred location requirements contained in the current Policy No. 64 Section A.
• Design guidelines: The draft Policy No. 64 includes updated design guidelines for small
wireless facilities within and outside of the right of way as follows:
Within the right of way
Local jurisdictions can establish aesthetic regulations if they are reasonable and
technically feasible for the carriers to comply with. The proposed policy establishes a
number of requirements designed to minimize the adverse aesthetic impacts an
approved facility might create:
o Use of existing poles is encouraged. Small wireless facilities within the right of
way will be located on existing or replacement streetlights, traffic signal poles,
utility poles, or installed on new stand-alone poles. The policy establishes a
preference that small wireless facilities be installed on existing poles first before
new poles are installed. The draft policy includes the city’s stated preferences on
the use of existing poles but the city cannot mandate them. However, applicants
will be required to provide justification if they are proposing installation on a
“least preferred” facility.
o Stealth design is required. Antennas must be concealed by a shroud or other
concealment device painted to match the pole. Any replacement pole should be
substantially similar to the existing pole and comply with city standards and
specifications for streetlight poles.
Additionally, for accessory equipment:
Pole-mounted equipment must be installed in a cabinet or other
concealment device painted to match the pole. The installation should be
designed to minimize the overall visual profile, and no exposed wires are
permitted.
Non-pole mounted equipment is encouraged to be installed
underground; however, ground-mounted equipment may be permitted if
properly screened or disguised. Base-mounted equipment is permitted if
fully integrated into the overall design of the pole.
Any replacement pole should be substantially similar to the existing pole
and comply with city standards and specifications for streetlight poles
Dec. 14, 2021 Item #16 Page 4 of 252
The design guidelines include flexibility that takes into account that the
city's authority to dictate certain physical sizes and equipment
configurations on shared utility poles (e.g. wooden SDG&E poles) is
limited by mandatory safety regulations set by the California Public
Utilities Commission.
o Height limitations. On existing poles, antennas would be limited to 5 feet above
the support pole, unless additional height is necessary to comply with California
Public Utilities Commission regulations on utility poles. New support poles may
exceed the height for standard city light poles by 10% plus five feet for the
antenna. A standard city light pole is between 24-26 feet tall, with some custom
poles approximately 14 feet tall.
o Size limitations.
Antennas – 3 cubic feet per antenna
Pole-mounted equipment – 9 cubic feet for rights of way adjacent to
residential areas, and 17 cubic feet for rights of way adjacent to non-
residential areas. The policy also establishes a maximum width of 24
inches for pole mounted equipment. Ground mounted equipment has
the same size limitation as pole mounted equipment and must be
screened or disguised. There is no volume limit to underground
equipment, subject to approval by the Engineering Manager.
o Decorative streetlights – For areas with decorative streetlights, the policy will not
allow replacement poles for decorative streetlights unless the replacement pole
is substantially similar in color, style and design to the existing decorative
streetlights. In addition, for areas that have decorative streetlights, the policy
requires a single consistent design theme to maintain the character established
by existing streetlights. To fully prohibit replacement poles for decorative
streetlights would mean that new standalone poles would be needed
throughout these areas for carriers to achieve coverage. Instead, staff
recommend allowing replacement poles that are substantially similar to the
original decorative streetlight poles to reduce the potential for visual clutter that
could result from adding more poles in an area.
o Trees – Applicants shall be responsible for planting replacement trees for any
trees that are damaged or displaced trees by the installation of any small
wireless facility in accordance with Carlsbad Municipal Code Title 11 – Public
property, and City Council Policy No. 4 – Street Trees.
Outside of the right of way
o Small wireless facilities will be subject to the same zoning standards as macro
sites and must comply with height and setback limits in the zoning district for
which they are located, unless they are installed on an existing facility that
exceeds height limits, such as ball field lighting.
o Small wireless facilities will be subject to the same design guidelines for macro
sites that require stealth design and screened equipment.
Dec. 14, 2021 Item #16 Page 5 of 252
o Small wireless facilities may be located on buildings or poles; however, if located
on poles then they would be subject to the same design requirements as
facilities located on poles within the right of way.
• Radio frequency emissions compliance: Consistent with FCC rules, the policy draft
requires an applicant to submit a radio frequency exposure compliance report that
certifies that the proposed facility, both by itself and cumulatively with all other
emitters in the vicinity, will comply with applicable federal exposure standards and
exposure limits.
The existing Policy No. 64 requirement for post-installation submittal of a radio
frequency compliance report conflicts with FCC rules, so staff is proposing to replace it
with a new one that instead requires compliance with laws, including those pertaining
to radio frequency emissions, at all times on an ongoing basis. This requirement allows
the permit decision-maker to ask for additional studies at any time they have good
cause to believe that the facility is not in compliance with any laws applicable to human
exposure to radio frequency emissions.
• Application procedures: Specific application requirements for small wireless facilities are
proposed.
• Exceptions for conflicts with law: The permit decision-maker will be authorized to make
exceptions in the case where compliance is not possible due to a conflict with federal or
state law. Any exceptions only apply to the subject guideline that is in conflict with the
law.
Options
Staff offer the following outlines options on City Council Policy No. 64 for the City Council’s
consideration:
Option 1: Adopt Policy No. 64 as recommended with no additional modifications
Pros
• Standardizes regulations and puts the city in compliance with the federal small cell
wireless order
• Provides protection for the community and city within the parameters of the FCC
regulations
Cons
• Does not include additional requirements that go beyond what is allowed in the
small cell wireless order
Option 2: Don’t adopt proposed modifications to Policy No. 64 and send back to staff with
additional direction to make it a more prohibitive policy, with exemptions required for
compliance with FCC regulations.
Pros
• None identified
Cons
• Would maintain confusion for applicants and residents related to inconsistencies
with the existing Policy No. 64 and the small cell wireless order
Dec. 14, 2021 Item #16 Page 6 of 252
• City will still be limited in what regulations are allowed to be established without
effectively prohibiting wireless service for any carrier or allowing for a waiver of
requirements for technical infeasibility
Option 3: Adopt modifications to Policy No. 64 with additional changes included.
Options to modify policy requested by residents and include:
• Allow for collocation on up to two poles in one location
• Change the order of facility preference
• Require additional radio frequency compliance reports
• Addition of required buffer or restrictions in residential areas
• Add a global exclusion from requirements due to technical infeasibility to serve an
area
Pros
• Some additional requirements or aesthetic guidelines could be added to the policy,
if there is an exception that would be in place if the regulations make it technically
infeasible to serve an area within the city
Cons
• Additional requirements may have the appearance of limiting placement, but due to
the requirements to not effectively prohibit wireless service, actual standards may
be limited in applicability
Additional information on potential modifications are included in Exhibit 4.
Fiscal Analysis
There is no fiscal impact with adoption of this policy amendment. The fees collected by
jurisdictions are set by federal law and adoption of this policy will not affect that amount.
Next Steps
Staff will implement the revised policy. The City Attorney will monitor pending litigation on this
issue and bring revisions of this council policy as necessary if and when these cases affect the
rules related to small wireless facilities.
Environmental Evaluation
According to California Environmental Quality Act Guidelines Section 15061 (b)(3), staff find
that this project will have no significant impact on the environment because:
• The proposed policy resolution does not directly or indirectly authorize or approve any
actual changes in the physical environment.
• Most of the terms and scope of city discretion with respect to small wireless facilities
are guided by existing state and federal law.
• The proposed amendments establish administrative procedures to process requests for
small wireless facilities and the city’s discretion with these applications is limited.
• The proposed amendments set forth the design standards for those wireless facilities to
protect the aesthetic interests and ensure a safe and accessible right of way.
In addition, applications for any new small wireless facility or other infrastructure deployment,
or a change to an existing small wireless facility or other infrastructure deployment, would be
subject to additional environmental review on a case-by case basis. Any applicable small
wireless facility installation would likely be exempt from CEQA in accordance with CEQA
Dec. 14, 2021 Item #16 Page 7 of 252
Guidelines Section 15302 - Replacement or reconstruction, Section 15303 - New construction or
conversion of small structures, and/or Section 15304 - Minor alterations to land. Accordingly,
this policy resolution would be exempt from CEQA under the “general rule” exemption.
Public Notification and Outreach
Staff sent the draft revisions to Policy No. 64 to several wireless industry representatives that
are, or intend to be locating facilities in the right of way, and comment letters were received
from Verizon, Crown Castle, Sprint and AT&T. These comments are included in Exhibit 5, as well
as staff’s responses to the comments.
On June 23, 2021, the City Council held a public workshop on 5G and wireless communication
facilities. At this workshop, Tripp May from Telecom Law Firm gave a presentation on the basics
of 5G and wireless communications technology, the state/federal legal framework and
limitations, City Council Policy No. 64, and recent/pending changes and challenges to state and
federal law.
The draft revisions to Policy No. 64 were available for a 30-day public review period from Oct.
22, 2021 to Nov. 22, 2021. The draft document was posted to the city website, and interested
parties were notified of its availability. Comments received and staff’s responses are included in
Exhibit 6. In addition, staff met with anyone who requested a meeting to discuss the proposed
revisions to Policy No. 64.
Public notice of this item was posted in keeping with the state's Ralph M. Brown Act and it was
available for public viewing and review at least 72 hours before the scheduled meeting date.
Exhibits
1. City Council resolution
2. City Council wireless workshop June 23, 2021, staff report
3. Draft amendments to City Council Policy No. 64, with revisions highlighted
4. Potential modifications to draft Policy No. 64
5. Wireless industry comments and responses
6. Public review comments and responses
Dec. 14, 2021 Item #16 Page 8 of 252
RESOLUTION NO. 2021-289
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, AMENDING CITY COUNCIL POLICY NO. 64 TO ACHIEVE
CONSISTENCY WITH CURRENT FEDERAL COMMUNICATIONS COMMISSION
REGULATIONS AND TO MODIFY AND SUPPLEMENT THE DESIGN STANDARDS
AND PROCESSING PROCEDURES THAT APPLY TO THE INSTALLATION OF
SMALL WIRELESS FACILITIES
WHEREAS, On Sept. 27, 2018, the FCC released a Declaratory Ruling and Third Report and Order
(FCC 18-133) which, among many other things, creates a new regulatory classification for small
wireless facilities (ie. small cells), alters existing "shot clock" regulations to require local public agencies
to do more in less time, establishes a national standard for an effective prohibition that replaces the
existing "significant gap" test adopted by the United States Court of Appeals for the Ninth Circuit and
provides that a failure to act within the applicable timeframe presumptively constitutes an effective
prohibition; and
WHEREAS, given the rapid and.substantial changes in applicable law, the federal prohibition on
reasonable moratorium ordinances to allow local public agencies to study these changes and develop
appropriate responses and the significant adverse consequences for noncompliance with these
changes in applicable law, the City Council finds that aesthetic and operational regulations adopted
through a resolution that supplements the City's existing guidelines, and that may be quickly amended,
is a necessary and appropriate means to protect the public health, safety and welfare from the
potential harm caused by unregulated small wireless facilities and other infrastructure deployments;
and
WHEREAS, City Council Policy No. 64 includes review guidelines for the installation of wireless
communications facilities within the boundaries of the City of Carlsbad; and
WHEREAS, the City Council of the City of Carlsbad, California has determined that amendments
to City Council Policy No. 64 are desirable for consistency with current FCC regulations and to modify
the standards for placement of small wireless facilities; and
WHEREAS, the City Council policy, attached hereto as Exhibit "A" and incorporated herein by
this reference, establishes reasonable, uniform and comprehensive standards and procedures for small
wireless facilities and other infrastructure deployment, construction, installation, collocation,
Dec. 14, 2021 Item #16 Page 9 of 252
{city of
Carlsbad
Council Policy Statement
Category: WIRELESS COMMUNICATION FACILITIES
Policy No.
Date Issued:
Effective Date:
Resolution No.
Cancellation Date:
64
9/26/2017 .
12/14/2021
2021-289
Supersedes No. 64 04/10/12
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 wireline communications, 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.
The following Review and Operation Guidelines (Guidelines) have been developed to supplement
and clarify the requirements of Carlsbad Municipal and Zoning codes, including chapter 21.42 of the
Carlsbad Zoning Code. These requirements are meant to provide a general overview of the
procedures and requirements for installation of WCFs, while accommodating and supporting
deployment of WCFs to provide adequate coverage and capacity throughout the city. They also
outline definitions that are quantifiable and measurable and detail development standards and design
requirements which the city will use to review proposed facilities. 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.
• Protect the health, safety, and welfare of the public to the extent permitted by applicable
laws.
• Are encouraged to locate away from residential and other sensitive areas, except as
allowed by Sections A, B and C of this policy.
• 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.
Page 1 of 18
Dec. 14, 2021 Item #16 Page 11 of 252
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. §§ 1.6100 et seq. (implementing Section
6409(a) of the Spectrum Act (codified as 47 C.F.R. § 1455(a)) for non-substantial modifications to
existing wireless towers and base stations)1 and other antennas installed on a residence for an
individual’s private use.
The Guidelines shall not relieve a person from the responsibility of complying with all other applicable
regulations of any other local, state, or federal agencies. These Guidelines supplement existing
regulations and provide clear standards and guidelines for all wireless infrastructure deployments unless
specifically prohibited by applicable law. The standards and procedures contained in these Guidelines
are intended to, and should be applied to, protect and promote public health, safety and welfare, and
balance the benefits that flow from robust, advanced wireless services with the city’s local
values. Except as expressly provided otherwise, these Guidelines shall be applicable to all applications
and requests for authorization to construct, install, attach, operate, collocate, modify, reconstruct,
replace, relocate or otherwise deploy WCFs, inclusive of applications which affect existing facilities.
These Guidelines are also intended to establish clear procedures for application intake and
completeness review. Conditional use permit applications for WCFs that were denied shall follow the
process in Carlsbad Municipal Code Section 21.54.130 for reapplication of a new CUP. Building permit
and ROW permit applications for facilities that were denied may be submitted to the Community
Development Department as new applications at any time, without prejudice. Said new application will
be processed as a completely separate application, with new submittal materials and fees required, and
shall demonstrate compliance with these Guidelines.
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 communications 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 WCF 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.
1 If the city determines that an application submitted for approval pursuant to Section 6409(a) is, in fact, not covered by the
applicable federal regulations, the applicant may resubmit the request for approval pursuant to the applicable provisions in this
policy.
Dec. 14, 2021 Item #16 Page 12 of 252
• The city may not favor any carrier.
Regulations may not unreasonably discriminate among functionally equivalent service providers.
A “functionally equivalent provider” means a competitor.
• 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. According to the FCC’s recent order in 2018, the denial of a single permit application may
cause an effective prohibition if it “materially inhibits or limits the ability of any competitor or
potential competitor to compete in a fair and balanced legal and regulatory environment.”
Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment,
Declaratory Ruling and Third Report and Order, WT Docket No. 17-79, WC Docket No. 17-84, 33
FCC Rcd. 9088 at ¶ 37 (2018) (Small Cell Order). In addition, local aesthetic requirements may be
prohibitory unless they are reasonable and published in advance. Small Cell Order at ¶ 40, rev’d
in part, City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020).
• 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.
• Failure to approve or deny applications may result in automatic approvals and court orders.
Under California Government Code 65964.1, an application for a wireless facility may be “deemed
approved” if a city or county fails to act within the presumptively reasonable timeframes
established by the FCC. This provision contains some exceptions but generally applies to new
facilities and very large modifications to existing facilities both on private property and in the
public rights-of-way. The FCC’s regulations contain a similar “deemed granted” remedy for less-
than substantial collocations and modifications to existing facilities. In addition, the Small Cell
Order establishes that a permitting agency’s failure to act within the referenced timeframes will
amount to a presumptive prohibition on the provision of personal wireless services, the remedy
for which may be a court injunction.
• 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 (Section 6409(a) non-substantial modifications).
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. §§ 1.6100 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.
• 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.
Dec. 14, 2021 Item #16 Page 13 of 252
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 routine e compliance demonstrations
under FCC guidelines, however, because their low power generation or height above ground level is highly
unlikely to cause exposures that exceed the guidelines in areas accessible by people.
PERMIT PROCESS:
Wireless communication facilities (WCFs) are defined in Carlsbad Municipal Code Section 21.04.379.
Carlsbad Municipal Code Section 21.42.140(B)(165) allows WCFs in all zones with the approval of a minor
conditional use permit (MCUP) or a conditional use permit (CUP) and subject to this policy. New WCFs
are allowed in the public right-of-way of roads (ROW) subject to the requirements of this policy and the
processing requirements of Table A below.
Small wireless facilities (SWFs) are WCFs that also meet the definition in FCC regulations at 47 C.F.R. §§
1.6002(l).
For WCFs and SWFs to be located in the public right-of-way of roads, which generally is not zoned, a
right-of-way permit pursuant to Title 11 of the Carlsbad Municipal Code may be used as outlined in
Table A – WCF and SWF Processing Requirements.
Dec. 14, 2021 Item #16 Page 14 of 252
Table A – WCF and SWF Processing Requirements
Category Code reference/
definition
Application Review
Process
Coastal Zone and
Coastal
Development
Permit (CDP)
requirements
Applicable
Policy 64
Guidelines
New WCFs on
public or
private
property
Carlsbad
Municipal Code
(CMC) Section
21.04.379
CUP or Minor CUP 1 CDP or Minor CDP
required per CMC
Chap. 21.201
unless specifically
exempted
A, B, D, and E
New WCFs in
the public
right-of-way of
roads
CMC Section
21.04.379
ROW permit2, Minor
CUP3 or CUP4
Exempt per CMC
Section
21.201.B.115
A, B, D and E
Existing WCF –
Section 6409(a)
eligible
facilities
request
CMC Section
21.04.379 and 47
U.S.C. § 1455(a)
Section 6409(a)
worksheets
Exempt per CMC
Section
21.201.B.115
N/A – Policy
64 does not
apply
Existing WCF –
Emergency
Generators
CMC Section
21.04.379 and
Government Code
Section 65850.75
Building Permit Exempt per CMC
Section
21.201.B.115
N/A – Policy
64 does not
apply
Small Wireless
Facilities (SWF)
CMC Section
21.04.379 and the
definition in FCC
regulations at 47
C.F.R. § 1.6002(l)
Within the
public right-
of-way of
roads:
Right-of-
way
Permit
Exempt per CMC
Section
21.201.B.115
C, D, and E
Outside the
public right-
of-way of
roads:
MCUP Minor CDP
required per CMC
Chap. 21.201
unless specifically
exempted5
B, C, D, and E
Notes:
1. These guidelines apply in the review of CUPs or Minor CUPs for new WCFs.
2. 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
3. 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
4. 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
5. When located within the city’s jurisdiction of the Coastal Zone.
Dec. 14, 2021 Item #16 Page 15 of 252
REVIEW AND APPROVAL GUIDELINES
A. Location Guidelines for Placement of WCFs (excluding SWFs)
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 that alternatives in more-preferred locations are not
technically feasible or potentially available as required by Application and Review
Guideline E.3.
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.
Dec. 14, 2021 Item #16 Page 16 of 252
5. Monopoles – No new ground-mounted WCF 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.4.
B. Design Guidelines for WCFs and SWFs Outside the Public Right-Of-Way of Roads
1. Stealth Design – All aspects of WCFs and SWFs, 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, textures and
materials), elements replicating natural features (e.g., trees and rocks), landscaping, and
other creative means to hide or disguise the facilities. 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 or extensions to existing structures 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, design and placement should promote
and enable collocation.
4. Height – facilities should adhere to the existing height limitations of the zone in which
they are located. When installed on an existing structure, new facilities and collocations
should not exceed the height of the existing/replacement structure on which they are
being installed.
5. Setbacks – WCFs and SWFs, 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, a setback should be maintained 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, a setback should be maintained 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 decision-maker for WCFs 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 and SWFs –
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.
Dec. 14, 2021 Item #16 Page 17 of 252
c. If permitted, WCFs and SWFs 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.
7. Ground-mounted Monopole WCFs –
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. Pole mounted SWFs shall comply with the Design Guidelines in section C.2 of this policy
as applicable, including height limits.
9. Lattice Towers – New lattice towers should not be permitted in the city. On existing lattice
towers:
a. All antennas should be mounted as close as possible to the tower so they are less
noticeable, and should match the color of the tower.
b. Wiring must be concealed in conduit that is flush-mounted to the tower. The
conduit and mounting hardware shall match the color of the tower.
c. Non-antenna equipment mounted on the tower should be placed behind the
antennas to conceal them from view, and should be enclosed in a cabinet that
matches the color and finish of the structures on which they are mounted.
Ground mounted equipment shall comply with B.2 above.
10. Undergrounding – All utilities should be placed underground.
11. Regulatory Compliance – WCFs should comply with all FCC, FAA (Federal Aviation
Administration), CPUC (California Public Utilities Commission) and local zoning and
building code requirements.
C. Design Guidelines for WCFs and SWFs in the Public Right-of-Way of Roads
The general intent of these design and development standards is to preserve the character of the city’s
neighborhoods and corridors by requiring WCFs and SWFs to utilize the least intrusive design available
with regard to appearance, size, and location, and to blend into the existing streetscape as much as
possible. They also seek to prevent conflict with existing and planned roadway, utility, and storm drain
improvements.
1. Support pole installation preferences for the right-of-way of roads
Dec. 14, 2021 Item #16 Page 18 of 252
a. The city prefers WCFs and SWFs to be installed on support poles in the public
rights-of- way of roads, ordered from most preferred to least preferred, as
follows:
(1) Existing or replacement streetlight poles.
(2) Existing or replacement wood utility poles.
(3) Existing or replacement traffic signal poles.
(4) New, non-replacement streetlight poles.
(5) New, non-replacement poles (not wood).
b. The city prohibits WCFs and SWFs facilities to be installed on the following
support poles or structures:
(1) Signs.
(2) Any utility pole scheduled for removal or relocation within 12 months
from the time the approval authority acts on the small wireless facility
application.
(3) New, non-replacement wood poles.
(4) Pieces of public art, structures placed in the in the right-of-way through
charitable donations, commemorative memorial structures or archways
over roads and pedestrian walkways, or other similar structures as
determined by the engineering manager.
c. The engineering manager shall determine whether an application for a WCF or
SWF utilizes the least intrusive design available or if there is a more preferred
support pole type within 500 feet of the proposed location. For purposes of these
guidelines, least intrusive design available means the most preferred design or
development standard as provided in these Guidelines that is technically feasible.
For individual antennas, shrouds/radomes, accessory equipment, mounting
brackets/attachments and any other physical aspect of a facility, the city strongly
prefers the smallest such item that is technically feasible. If the application does
not propose the least intrusive design, or if there is a more preferred support pole
within 500 feet, the application shall provide written evidence of the following:
(1) A clearly defined technical service objective
(2) A technical analysis that includes the factual reasons why the least
intrusive design or a more preferred support pole type within 500 feet of
the proposed location is not technically feasible.
2. Requirements applicable to all WCFs and SWFs in the public right-of-way of roads
a. Overall height. WCFs and SWFs mounted to existing poles shall not exceed the
height of a support pole by more than five feet measured from the top of the
pole, except as necessary to comply with CPUC General Order 95 relating to utility
poles. Replacement poles and new non-replacement poles shall not exceed the
city height standards for streetlight poles or traffic signal poles, as applicable, by
more than ten percent, plus five feet for the antenna. Replacement utility poles
shall not exceed ten percent of the height of the existing utility pole, plus five feet
for the antenna.
b. Antenna stealth/concealment. The antenna(s) associated with the installation
shall be stealth to the maximum extent feasible and concealed with a radome(s),
shroud(s) or other cover(s) that also conceals the cable connections, antenna
mount, and other hardware. The radome, shroud or other cover must be a flat,
non-reflective color to match the underlying support structure.
Dec. 14, 2021 Item #16 Page 19 of 252
c. Antenna size.
(1) Each antenna shall not exceed 3 cubic feet in volume.
(2) Top-mount antennas (including the shroud) shall be no more than 16
inches wide when placed on light poles, and shall not exceed the width of any
wooden utility pole on which they are mounted.
(3) Any top-mounted antennas which are wider than the light pole on which
they are mounted shall be tapered to match the width of the pole at the point
of attachment to the pole.
d. Equipment location. Accessory equipment may be both pole mounted and non-
pole mounted. Pole mounted limits are described in Section C.2.e , the balance
located according to the following preference: (1) underground, (2) above ground
and screened consistent with Section C.2.f. The city’s preferences is for non-pole
mounted equipment to be placed underground to the extent possible, unless the
applicant demonstrates that it is technically infeasible or there are conflicts with
other utilities, obstructions or it is otherwise not feasible, as determined by the
engineering manager. If undergrounding is not feasible, the city prefers the
equipment to be pole-mounted.
e. Pole mounted equipment.
(1) Design and stealth/concealment. Accessory equipment must be stealth
to the maximum extent feasible and/or concealed within a cabinet or
shroud, and should be flush mounted and centered on the pole, except
to the extent necessary to comply with CPUC General Order 95 for wood
utility poles. The installation should be designed to minimize the overall
visual profile, and installations that are partially or completely wrapped
around the pole are encouraged. All equipment cabinets or shrouds shall
be painted to match the color of the surface of the pole on which they
are attached to reduce their visibility. Equipment may be installed behind
street, traffic or other signs (between the pole and sign) to the extent
that the installation complies with applicable regulations. All cables and
conduits associated with the equipment shall be concealed from view
within the same shroud or other cover and routed directly through the
pole when feasible. Microwave or other wireless backhaul shall not have
a separate and unconcealed antenna.
(2) Size limits. All non-antenna equipment mounted to the pole is included
in the equipment volume limit. Electric meters and disconnect switches
that are mounted on the pole are not included in the equipment volume
limit. All pole mounted non-antenna equipment, including cabinets, shall
not exceed:
(a). A width of 24 inches; and
(b). Nine (9) cubic feet in volume if installed within or adjacent to a
residential district or within 500 feet from any structure
approved for a residential use; or
(c). Seventeen (17) cubic feet in volume if installed within or adjacent
to a non-residential district.
f. Ground mounted equipment. If underground equipment is not feasible because
there are conflicts with other utilities, obstructions or it is otherwise not
technically feasible, as determined by the engineering manager per section (d)
above, then all above ground equipment shall be: (1) placed in a ground-mounted
Dec. 14, 2021 Item #16 Page 20 of 252
equipment shroud or cabinet that contains all equipment associated with the
small wireless facility 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. All ground mounted equipment shall be stealth and/or
screened completely, unless it is disguised to the satisfaction of the engineering
manager. Volume limits for ground-mounted equipment shall be the same as
applicable to pole-mounted equipment. The engineering manager may elect to
waive volumetric limits for equipment that is installed or placed underground.
g. All equipment associated with the WCF or SWF shall be located so as to avoid
impacts to pedestrian access and vehicular site distance and safety. Pole
mounted equipment should be mounted a minimum of eight feet above grade.
h. To reduce clutter and deter vandalism, excess fiber optic or coaxial cables shall
not be spooled, coiled, or otherwise stored on the pole unless concealed within
a cabinet.
i. If the proposed WCF or SWF would damage or displace any street trees or trees
on public property, the applicant shall comply with CMC Chapter 11.12 and City
Council Policy No. 4 and will be responsible for planting replacement trees to the
satisfaction of the Parks & Recreation Director or designee.
j. If an applicant proposes to replace a streetlight pole, the replacement pole should
be substantially similar to the existing pole and comply with city standards and
specifications for streetlight poles.
3. Supplemental requirements for WCFs and SWFs on New Poles for the right-of-way of roads
a. All WCFs on new poles require a CUP by Process 2.
b. Any new pole and/or equipment and other 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:
i. A minimum of 50-feet from the extension of the curb of the intersecting street at
intersections. Distances of less than 50-feet may be allowed through approval of
the engineering manager and the city traffic engineer;
ii. Six feet from any driveway cut or alley entrance or exit;
iii. 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.
c. 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.
d. The city may require the applicant to install a stealth pole, which may include without
limitation 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.
Dec. 14, 2021 Item #16 Page 21 of 252
e. The city will consider new pole designs proposed by an applicant if they meet the intent
of this policy for stealth and attractive designs that adequately conceal equipment, as
determined by the engineering manager. If a new pole without a streetlight is proposed,
antennas and all equipment not installed underground must be concealed and integrated
into the overall design of the pole, no exterior equipment boxes or shrouds attached to
the pole will be permitted.
4. Areas with decorative streetlight poles.
a. Replacement poles and new non-replacement poles installed within the following
areas shall be substantially similar in color, style and design to the existing
decorative streetlights, as determined by the engineering manager in
consultation with the city planner. Poles in each area shall use a single consistent
design theme to maintain the existing character established by existing
streetlights:
(1) Carlsbad Village
(2) Villages of La Costa Master Plan
(3) Bressi Ranch Master Plan
(4) La Costa Master Plan (MP 149)
(5) Various roads including El Camino Real and Aviara Parkway that utilize
the mission bell streetlight design
(6) Any other areas as determined by the city planner or engineering
manager
5. Supplemental requirements for WCFs and SWFs on existing wood utility poles.
a. All antennas must be installed within a radome, shroud or other cover mounted
to the pole at the top, side, or on a stand-off bracket or extension arm that is
attached to the pole. The city’s preference is for side-mounted antennas located
in the communications space below the electric lines.2
b. All cables, wires and other connectors must be concealed within the antenna
shroud, stand-off bracket/extension arm and conduit that is flush-mounted to the
pole to the maximum extent feasible and of the smallest diameter and shortest
length necessary to serve the facility. No loose, exposed, or dangling wiring or
cables shall be allowed.
c. All shrouds, conduit or other items stealth/concealing antennas, equipment and
wires shall be painted to match the color of the pole.
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
2 Strand-mount antennas are also considered a preferred installation type.
Dec. 14, 2021 Item #16 Page 22 of 252
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 laws and FCC RF Exposure Guidelines – The permittee shall maintain
compliance at all times with all federal, state and local statutes, regulations, orders or
other rules that carry the force of law (“laws”) applicable to the permittee, the subject
property, the WCR, SWF or other infrastructure deployment or any use or activities in
connection with the use authorized by a required permit, which includes without
limitation any laws applicable to human exposure to RF emissions and any standards,
specifications or other requirements identified by the city planner or engineering
manager (such as, without limitation, those requirements affixed to a required permit). If
the city planner or engineering manager finds good cause to believe that the facility is not
in compliance with any laws applicable to human exposure to RF emissions, the city
planner or engineering manager may require the permittee to submit a written report
certified by a qualified radio frequency engineer familiar with the facility that certifies
that the facility is in compliance with all such laws. The city planner or engineering
manager may order the facility to be powered down if, based on objective evidence, the
city planner or engineering manager finds that the facility is in fact not in compliance with
any laws applicable to human exposure to RF emissions until such time that the permittee
demonstrates actual compliance with such laws. The permittee expressly acknowledges
and agrees that this obligation is intended to be broadly construed and that no other
specific requirements in these conditions are intended to reduce, relieve or otherwise
lessen the permittee’s obligations to maintain compliance with all laws. No failure or
omission by the City to timely notice, prompt or enforce compliance with any applicable
provision in the Carlsbad Municipal Code, this Policy, any permit, any permit condition or
any applicable law or regulation, shall be deemed to relieve, waive or lessen the
permittee’s obligation to comply in all respects with all applicable provisions in the
Carlsbad Municipal Code, this Policy, any permit, any permit condition or any applicable
law or regulation. .
6. Abandonment of antennas and equipment- Any WCF or SWF 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 facility owner must
remove the facility and restore the site, as much as is reasonable and practical, to its prior
condition. If such facility is not removed within the 90 days, the facility 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
Dec. 14, 2021 Item #16 Page 23 of 252
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. Application requirements for WCFs. In addition to the typical submittal requirements for
a CUP or Minor CUP (see Planning Division Form P-2), right-of-way permit or building
permit (including plans, landscape details, and color and material samples, as
appropriate), all WCF applications shall include the following items:
a. A description of the site selection process undertaken for the WCF proposed.
Technical service 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. The
applicant shall submit an RF exposure compliance report that certifies that the
proposed facility, both individually and cumulatively as applicable under 47 C.F.R.
§ 1.1307(b)(5), will comply with applicable federal RF exposure standards and
exposure limits.
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 or engineering manager may waive the requirement
to provide the exhibits if he/she determines they are unnecessary.
f. Provide confirmation that an environmental assessment, or other application
determination, has been completed by or on behalf of the FCC for any facility
proposed in a location identified in 47 C.F.R. 1.307 (including a floodplain) or as
otherwise required by National Environmental Policy Act or the National Historic
Preservation Act.
2. Application requirements for SWFs. In addition to the typical submittal requirements for
a right-of-way permit or building permit (including plans, landscape details, and color and
material samples, as appropriate), all SWF applications shall include the following items:
a. A description of the wireless system proposed (e.g., cellular, PCS, etc.) and its
consumer features (e.g., voice, video, and data transmissions).
b. For new poles that are least preferred, a description of the site selection process
undertaken for the proposed SWF. A technical service objective and the reasons
for selecting the proposed site and rejecting other sites should be provided.
c. Verification that the proposed SWF 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). The applicant shall submit an RF exposure compliance report that
certifies that the proposed facility, both individually and cumulatively as
Dec. 14, 2021 Item #16 Page 24 of 252
applicable under 47 C.F.R. § 1.1307(b)(5), will comply with applicable federal RF
exposure standards and exposure limits.
d. 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 or engineering manager may waive the requirement
to provide the exhibits if he/she determines they are unnecessary.
e. Environmental impact assessment form to determine whether the proposed
project is categorically exempt under Article 19 of the CEQA Guidelines, or
whether the proposed project will require a Negative Declaration, Mitigated
Negative Declaration or an Environmental Impact Report. In addition, provide
confirmation that an environmental assessment, or other application
determination, has been completed by or on behalf of the FCC for any facility
proposed in a location identified in 47 C.F.R. 1.307 (including a floodplain) or as
otherwise required by National Environmental Policy Act or the National Historic
Preservation Act.
3. For WCFs proposed in a zone or area that is a discouraged WCF location as listed in
Location Guideline A.2., the applicant shall provide evidence that no location in a
preferred zone or area as listed in Location Guideline A.1. is technically feasible or
potentially available to 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.
4. For proposed new ground-mounted monopole WCFs, the applicant shall 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.
5. In approving a WCF or SWF, the decision-maker (Planning Commission, city planner or
engineering manager) shall make the findings in Carlsbad Municipal Code Section
21.42.020 if applicable, and shall give consideration to 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.
Dec. 14, 2021 Item #16 Page 25 of 252
h. Availability of other facilities and buildings for collocation.
6. Conditional Use Permits (CUPs)/Minor CUPs 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 or Minor CUP, the WCF will 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 will review the appropriateness of the existing facility’s design, and
that the applicant documented 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.
7. Collocation for WCFs. Pursuant to California Government Code Section 65850.6,
qualifying collocation facilities for WCFs shall not be approved with a conditional use
permit or conditional use permit amendment. This section does not apply to SWFs.
a. For the purposes of collocation, the following definitions apply:
(1) “Collocation facility” means the placement or installation of WCFs,
including antennas, and related equipment, on or immediately adjacent to, a
wireless telecommunications collocation facility.
(2) “Wireless telecommunications facility” means equipment and network
emergency power systems that are integral to providing wireless
telecommunications services.
(3) “Wireless telecommunications collocation facility” or “WTCF” means a
wireless telecommunications facility that includes Collocation facilities.
b. A building permit shall be required for a proposed WCF Collocation facility which
will be placed on a previously approved WTCF provided that:
(1) The new WCF Collocation facility is consistent with requirements for the
existing WTCF installation; and
(2) The modification of an existing wireless tower or base station does not
physically change the dimensions of such tower or base station.
c. 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.
d. 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.
8. Applications from a single provider of wireless communication services for up to 10 SWF
permits may be batched and processed together. A single provider may not submit more
than one batch of applications at one time. Batched applications will only be accepted
prior to 4:00pm Monday through Thursday.
Dec. 14, 2021 Item #16 Page 26 of 252
9. Applications must be submitted in-person and with an appointment. Application
materials delivered by U.S. mail or other delivery service will not be processed and do not
constitute a submitted and duly filed application. An application is not considered duly
filed and submitted unless it is provided in-person to a representative of the Community
Development Department and assigned a case number or permit number as appropriate.
10. SWFs that propose to use an existing pole, replacement pole or other existing structure
shall be required to provide authorization from the pole or structure owner.
Authorization may include signatures, letters, agreements or other similar methods
acceptable to the city planner or engineering manager. Authorization from the owner in
connection with joint utility poles may be evidenced by documentation that shows that
authorization has been granted in accordance with the joint pole committee’s rules,
which may include authorization deemed granted by lapse of time.
11. Exceptions to this policy. The city may grant an exception to the requirements of this
policy but only to the extent necessary to avoid conflict with applicable federal or state
law. When the applicant requests an exception, the approval authority shall consider the
findings in subsection (a) of this section. Each exception is specific to the facts and
circumstances in connection with each application. An exception granted in one instance
shall not be deemed to create a presumption or expectation that an exception will be
granted in any other instance.
a. The decision maker may grant an exception to any provision or requirement in
this policy only if the decision maker finds that:
(1) A denial based on the application’s noncompliance with a specific
provision or requirement would violate federal law, state law or both; or
(2) A provision in this policy, as applied to the applicant, would violate any
rights or privileges conferred on the applicant by federal or state law.
b. If the decision maker finds that an exception should be granted, the exception
shall be narrowly tailored so that the exception deviates from this policy to least
extent necessary for compliance with federal or state law.
c. The applicant shall have the burden to prove to the decision maker that an
exception should be granted pursuant to this section. The standard of evidence
shall be the same as required by applicable federal or state law for the issue raised
in the applicant’s request for an exception.
12. Pre-Application Meetings. Federal laws and policies establish time limitations (referred
to as a “shot clock”) related to processing of all types of WCFs and SWFs permits. The city
is required to act on a WCF or SWF permit within the established shot clock timeframes.
Pre-application meetings are strongly encouraged in order to ensure that proposed
facilities comply with the requirements of these Guidelines and that application materials
include adequate and accurate information. A pre-application meeting is voluntary and
is intended to streamline the review process through informal discussion between the
potential applicant and staff that includes, without limitation, the appropriate project
classification and review process; any latent issues in connection with the proposed
project, including compliance with generally applicable rules for public health and safety;
potential concealment issues or concerns (if applicable); coordination with other city
Dec. 14, 2021 Item #16 Page 27 of 252
departments responsible for application review; and any foreseen application
completeness issues.
13. Pre-approved designs. To expedite the review process, encourage collaborative designs
among applicants and the city, and ensure cohesive and high-quality designs for new or
replacement poles in areas such as those with decorative streetlights, the engineering
manager in consultation with the city planner, may designate one or more pre-approved
designs for small wireless facilities and other infrastructure deployments.
a. Any applicant may propose a design for consideration as a pre-approved design.
The city may, in its discretion, establish a pre-approved design when the proposed
pre-approved design exceeds the design guidelines in this policy.
b. The city may modify or repeal any pre-approved design by written notice to any
applicants who have used the pre-approved design, and by posting the notice at
the Land Use Engineering counter. The modification or repeal shall be effective
immediately.
c. Any applicant may propose to use any pre-approved design whether the
applicant initially requested that the city adopt such pre-approved design or not.
The city’s decision to adopt a preapproved design expresses no preference or
requirement that applicants use the specific vendor or manufacturer that
fabricated the design depicted in the pre-approved plans. Any other vendor or
manufacturer that fabricates a facility to the standards and specifications in the
pre-approved design with like materials, finishes and overall quality shall be
acceptable as a pre-approved design.
14. A master license agreement or other authorization is required prior to permit submittals
for WCF or SWF installations that will locate on city-owned property or facilities.
15. At the time of filing the application, the applicant shall pay all applicable fees contained
in the most recent fee schedule adopted by the city council.
16. An applicant may voluntarily elect to defer submittal of any permit or agreement which
is otherwise required as part of a whole application. The voluntary deferral of any such
permit or agreement shall toll the shot clock on that item. Once the voluntarily deferred
item is received, the city will provide comments on any deferred submittal in the same
manner as if it was a new application. The city will continue to process all other permits
and agreements that are not deferred.
SEVERABILITY:
If any sections, subsections, sentence, clause, or phrase of the policy is for any reason held to be invalid
or unconstitutional by the decision or legislation of any court of competent jurisdiction, or by reason of
preemptive legislation, such decision or legislation shall not affect the validity of the remaining portions
of the policy. The City Council declares that it would have approved this policy, and each section,
subsection, sentence, clause and phrase thereof, irrespective of the fact that one or more of the sections,
subsections, sentences, clauses, or phrases thereof is declared invalid or unconstitutional.
These Guidelines have been adopted, and may be amended, by resolution of the City Council. Revisions
to address clerical errors may be made administratively by the Director of Community Development.
Dec. 14, 2021 Item #16 Page 28 of 252
Exhibit 2
CITY COUNCIL
Staff Report
Meeting Date:
To:
From:
Staff Contact:
June 23, 2021
Mayor and City Council
Scott Chadwick, City Manager
Jason Haber, Intergovernmental Affairs Director
Jason.haber@carlsbadca.gov, 760-434-2820
CA Review CKM
Subject:
Districts:
SG Cellular Technology and Wireless Communication Facilities Workshop
AU
Recommended Action
Hold a public workshop to receive a presentation on SG cellular technolo_gy 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 SG
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 considerat ion.
Discussion
SG cellular technology deployment
SG 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. SG 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 4G networks. Small cells are
June 23, 2021 Item #1 Page 1 of 38 Dec. 14, 2021 Item #16 Page 30 of 252
commonly associated with SG 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 eel Is 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 SG 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
comp.ly 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(B)(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 Dec. 14, 2021 Item #16 Page 31 of 252
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 polky 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.1
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
restri.ctions 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 Dec. 14, 2021 Item #16 Page 32 of 252
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 inst allations
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 facilitiesJ 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 s.ubstantial change. The FCC adopted a declaratory ruling on
June 9, 2020 (FCC 20-75) and a report and order on Oct. 27, 2020, (FCC20-153) 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 faeilities 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 contepts in the FCC's rules, but creates entirely new processing requirements for
local g.overnments that on IV 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 Dec. 14, 2021 Item #16 Page 33 of 252
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 communicat ion 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 Communkation 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 Dec. 14, 2021 Item #16 Page 34 of 252
Exhibit 1
------. ---~.c.onsumer 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 occupati.onal 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 rimits 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 enfo,rcement action against the appropriate party. For more information on device
testing and SAR for cell phones, go to fcc.qov/consumers/quides/specific-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.
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Dec. 14, 2021 Item #16 Page 35 of 252
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.gov/radiation-emitting-products/cell-phones/scientific-evidence-cell-
phone-safety). The FDA maintains a website on RF issues at fda.gov/Radiation-
EmittingProducts/RadiationEmittingProductsandProcedures/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/fs 193/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.qov/engineering-technology/electromagnetic-compatibility-
division/radio-frequency-safety/faq/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 RF energy. The FCC does not endorse the need for these
practices, bl.it 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 tfme 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
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operate at much lower power levels resulting in RF 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 RF energy
from one cell phone than from another during normal use (see our guide on SAR and cell phones at
fcc.qov/quides/specific-absorption-rate-sar-celt-phones-what-it-means-you). 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/general/specific-absorption-
rate-sar-cellular-telephones, and may be provided with device documentation or by dialing *#07# on
certain models. Additional guidance on reducing RF exposure from cell phones is available on the FDA
website at fda. gov /radiation-emitting-products/cell-phones/reducing-rad io-freg uency-exposu re-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.gov/radiation-emitting-products/cell-phones/potential-cell-phone-interference-
pacemakers-and-other-medical-devices.
Consumer Help Cente.r
For more information on consumer issues, visit the FCC's Consumer Help Center at
fee.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
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{city of
Carlsbad
Council Policy Statement
Category: WIRELESS COMMUNICATION FACILITIES
Policy No.
Date Issued:
Effective Date:
Resolution No.
Cancellation Date:
Exhibit 2
64
9/26/2017
9/26/2017
2017-189
Supersedes No. 64 04/10/12
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 telecommunicatrons, 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 provid~d 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.
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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 ofa 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 app!icarit proposes the least intrusive means to
clos~ 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.
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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 w·1th 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 g.uidelines
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
anterina, it is not possible to be exposed to RF emissions that exceed the maximum permissible
exposure.
The FCC requires providers, upon li4:ense application, renewal, or modification, to demonstrate
compliance with RF exposure guidehnes. Where two or more wireless operators have loq:ited their
antennas at a common location (called "collocation"), the total exposure from all antennas taken
together must bewithin FCC guidelines. Many facilities are exempt from having to demonstrat e
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(8)(165) allows WCFs in all zones with the approval of a
conditional use permlt (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 genera lly 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, bas 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 t he Public Right-of-Way C; ,
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Policy No. 64
(3) A CUP by Process 2 shall be required for a.II 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 Locatlons -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 Locutions -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 ofthe 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
1 and/or screened so it is hfdden or disguised.
4. Co/location -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 wh.en in compliance with these guidelines. The city
mu.st approve collocation applications unless the expansion adds significantly to the height
or width of a facility.
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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 methods1
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 facilit ies 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 mat ch nearby architecture or the surrounding landscape.
3. Co/location -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 struct ure's height.
b. If in a residential zone and in a public utility installation, park, or community facility,
the WCF snould be set back from the property boundaries of the uUlity 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 compatibilit y 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 t he 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 butlding.
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Policy No. 64
7. Ground-mounted Monopoles:
a. Alf 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
"mono0palm," may be acceptable depending on their quality and compatibility with
landscaping nearby.
c. Landscaping should be provided as necessary to screen, complement, or add rea.lism
to a monopole. Landscaping should include mature shrubs and trees. Some of the
trees should be talf enough to screen at least three-quarters of the height of the
monopole at the time of planting. Sometimes, land!>caping may not.be needed because
of the monopole's location or vegetatron 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-AII 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 pble 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 t heir
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 re·asonably 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
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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 cafe 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. Micrbwave 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.
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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 .ind damaged, dead,
or decaying,Jandscaping should be replaced promptly. Replacement of landscapi ng 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. Mainte.nance 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 Guidefines -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 field.s 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, wil! 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 th.e 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:
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Policy No. 64
a. A description of the site selection process undertaken for the WCF proposed. Coverage
objectives and the reasohs 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 transmis.sions).
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 m~y 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 liste-d 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") cou Id accommodate the proposa I. 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 vers.a.
c. The fees, costs; or contractual provisions required by the owner to l_ocate 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 appli.cant 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 Commi.ssion 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 pf design and screening.
g. Impacts on public views and the vi_sual quality of the surrounding area.
h. Availability of other facilities and buildings for collocation.
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Policy No. 64
S. 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 sma llest, most efficient, and least
visible and that there are not now more appropriate and ava i!able 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 re!ated 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 condition91 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.
Sep~mf}er 26, 2017 Page 10 oflO Dec. 14, 2021 Item #16 Page 47 of 252
>' -Preferred Locations for Placement of WCF in the ROW
xd, 02/08/2017 Exhibit A
Preferred Locations for Placement of Wireless
~ser,fe~~FIB-lflication Facilities i1~JQje~OO~~y Dec. 14, 2021 Item #16 Page 48 of 252
Hector Gomez
From:
Sent:
To:
Cc:
Subject
Dear Mr. Haber:
Irene Tsutsui < irenegdnight@earthlink.net>
Wednesday, February 19, 2020 9:57 AM
Jason Haber
/\II Rcc:Eiivc -J\gend.:J llern-;; 1;.~--
For the lnform;ition of th~: -
Cl'fY COUNCIL Date:J/l'l/1~ CA L cc.~
coq_ v-coo ::S::no: 1at4b
Scott Chadwick; Celia .Brewer; Matthew Hall; Priya Bhat-Patel; Cori Schumacher; Keith
Blackburn; City Clerk
5 LAWSUITS VS FCC/SAFETY CONCERNS REQUIRE IMMEDIATE MORATORIUM ON 5G
DEPLOYMENT IN CARLSBAD
Thank you for giving me the opportunity to discus-s with you my great concerns (as also conveyed to me-by others) with
respect to the SG 'small cell' deployment in Carlsbad.
Just to summarize the high points of our-discussion, here are my fin~I thpughts.
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
infrasfructure in any form {to include but not be limited to 4G/5G 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 guid~tines,
the City of Carlsbad has a moral imperative and the legal authority to implement an rmmediate emergency pause
ordinance
B. It is extremely urgent and important to have the subject of SG 'small cell' infrastructure (intruding pending 4G/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 ln various ways to no ava1L 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 urgen~y of the 4G/5G 'small cell'
infrastructure con_cerns are being addressed in a serious and timely manner. You had asked if I/we had met with anyone;
a meeting arranged with one qr two council members and someone from your planning/public works department would
be useful to address some of our questions.
C. When it c;omes 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 expo.sed to [ts pervasive wireless radiation
and the resulting health, safety and security hazards not to mention how the aesthetics of the city qnd 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
46/SG '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 adtjress
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 SG '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 Dec. 14, 2021 Item #16 Page 49 of 252
Carlsbad residet'lt
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 SG 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 Dir~ctbr
City of Carlsbad
From: Irene, Tsutsui [mailto:ireneg~night@earthlirik.net]
Sent: Tuesday, February 18, 2020 1:44 PM
To: Jason Haber <Jason.Haber@carlsbadca:gov>
Subject; RE; 5 LAWSUITS VS FCC/SAFETY CONCERNS REQUIRE IMMEDIATE MORATORIUM ON SG DEPLOYMENT IN
CARLSBAD
Dear Mr. Haber,
Thankyovfor your response. My 760-602.-0839 is a working phone number, but I po have .a no 'robocall' block for those
calls so maybe somet hing 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: Tuesda·y, February 18, 2020 11:39 AM
To: irenegdilight@earthlink.net
Cc: Scott Cha.dwicl<; City Clerk
Subject: RE: 5 LAWSUITS vs FCC/SAFElY CONCERNS REQUIRE IMMEDIATE MORATORIUM ON SG DEPLOYMENT IN
CARLSBAD
Dear Ms. Tsutsuf -
Th,ank you for contacting the City of Carlsbad and sharing your concerns regarding SG deployment. Our City Manager,
Scott Chadwick, asked me to contact you regarding those concerns and to inform you that we a re 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 ~s no 1(:mger in service. Please contact
me at your convenience should you wish to discuss this matter further.
Thank you,
June 23; 2021 Item #1 Page 21 of 38
Dec. 14, 2021 Item #16 Page 50 of 252
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.cartsbadca.gov
Facebook I Twitter I You Tube I .E!!.g[ I Pinterest I Enews
From: Irene Tsutsui <irenegdnight@earthlink.ntl>
Sent: Friday, February 7.,,. 2020 12:43 PM
To: Scott Chadwick <Scot t.Chadwkk@carfsbadca.gov>
Cc: City Clerk <Clerk@carlsbadca.gov>
Subject: 5 LAWSUITS VS FCC/SAFETY CONCERNS REQUIRE IMMEDIATE MORATORIUM ON SG DEPLOYMENT IN
CARLSBAD
lmpprtance: High
Dear Mr. Chadwick:
car!sbad residents are becoming increasingly concerned about the SG/Smart Cell towers and antennas already installed
with others assumed to be in the pipeline. These are being deployed with no consfderation 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.
rn 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 {h,1ws4ft #1} The_artide gives an excellent overview.of the
main issues concerning Carlsbad citizens regardi11g the installation of SG/Smart Cell towers and antennas. The primary
issues qf health.and safety \Vere never properly addressed (for pecades) by the FCC which simply stuck to it,s extremely
outdated 19% s•afety guldelines. I spoke at the January 21 City Council meeting to inform you that the FCC's omission
of "non-them,al" measurements does a terri.ble injustice to anyone unwittingly harmed from exposure to wireless
radiation at the lower non-thermal levels. By limiting its safety guidelines to "thermal'' only spedfiC?tions, the FCC has
completely ignored thousands of sdeptific research reports conveying damage to humans and. living tnings 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 2rro attachment laws1.fit #2) will determine whether or not SG/Smart Cell wireless
technology can continue to be deployed. As it is nowr in my personal viewahy SG tower or antenna that has already
been installed has been authorized under illegal auspices .. As stated in the attached actic;le, "Specificallyi Montgomery
County ls-asking the Ninth Circuit to determine whether the FCC violated the National Environmental Policy Act and
the Administra.tive Procedure Act by failing to conduct an environmental analysis of the RF star,dards and potential 5G
health risks, or explain why it did not consider whether its own existing RF standards will be protective of human·
heQ/th in a new SG world." ... Yet despite th1s mandated ob/fgation to protect the public health, the FCC ignored Its
NEPA obligations in the rush for nationwide migration to SG."
June 23, 2021 3 Item #1 Page 22 of 38
Dec. 14, 2021 Item #16 Page 51 of 252
,;Similar to the FCC's shortcomings under NEPA, the FCC also viol~ted 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
smqll ceJ/s and did not explain why it ignored this relevant factor. Under the APA, courts will strike down agency
action as arbitrary and coptidous if the agency has, among otherthingsj "entirely failed to consider an important
aspect of the problem."
The FCC has acknowledged it has ai respopsibility to fol1ow the r,egula.t{ons so they can no longer continue to biiry
their head in the sand. The second attachment shows lists of National League qf Cities (US) plaintiffs in September
2019 an.d January 2020, Note, the number of plaintiffs has grown substant'ially (S:0%+ now com.prising almost tvvo
pages) in four months ago indicating the growing groundswell movementagaJnst SG w'ireless technology b~ing
deployed without safety studies or-updated guidelines to ensure the health and safety of c:itize~. Note toward the
bottom (Via 'techncicracy' link below my signature J a December listing of the ''.Law$uit,ri-r~gulat«1rs vs. FCC
~lieges. theft-and redirection of estimated $1 trillion in funds ... " (lawsuit #:3') T:tle· outcome .of this tawsuit could
9-ave a very deleterious effect on further deployment of SG/Smart Cell to¾',ers· and aiitenn<l§/wfreless
techIJology; basically it alleges thatutili.ty consumers bave·been paying forWlRE'D technglogyservice for many
years thus ate entitled to receive WIRED vs. Wireless service, the...cheaper but in ore. dangerous option_ health~wise.
The netvly filed laW.:Sliit again$tthe FCC by Robert F. Kennedy Jr's, Children Pefense Fufi,d (lawsuit #4) ·vVHl
garnerwide::s~11po:rt_siniilar towh~t,his t~am gather,ed in Chailengip.g the SQfety of M0'1santo's Roundup .
(glyphosate) weed killer~ Pare.ntcompany Bayer recently announced an $8 billion settlement of claims with an
additional $2 biUion to be.allocated fo future damage claims from toxic glyphosate exposure. Based on the success
ofthe Kennedy legal teams lawsuit agafost al:Ila}pr gpliath agricu1tural.entity, please considerthe huge impact
Kennedy's lawsuit-Will likely have on weakening the-FCC's l'egal defense of its having. violated its NEPA and APA
obligations. If the courts determine thatthe f CC.must update .its safety guidelines,. this will have a huge impact on.
the SG rollout possibly imposing a moratorium or severe restrictions on same.·
CHO v the Federal Communication Commission {FCC ... (Robert F. Kennedy Jr's Cbildr_ens .
Health Defense . .lawsuit #4)
,m-,
vhttps:ljchifdrenshealthdefense.org/ .. ./legal/chd-v-federal-comrriunication-commission-fc
Additionally, anotherrecentlawsui~will weigh heavily ag~instthe FCC.
,Scientists Sue FCC for Dismissing Studi~s Li_nking Cell Phone Radiation to Canc~r
(iawsuit #5)
https:ljlawandcrime.com/administrative-law/scientists-sue-fcc-for-dismissing-claims-that-cell-phone-radiatidn-causes-
~~~ .
;
The 'technocracy'link (below my signature) indicates the strong global movementagalnst SG; example, the 100 Italian . ,
municipalities noted below and a moratorium called for via The SG appealsigned by 253 scientists and 42 nations.
note there is a listof lawsuits named in o.ne item a$ you strait down the page. The second Ifni< www.biolnitiative.org
often named as a reference it-em· in~ law?uits provtdE!s peer reviewed studies (non-industry) on the hea Ith 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 cititens' concerns expressed at the City Council meetings have
been taken with the !<ind of urgency that is needed. It is important that you and others do your due diligence to
determine t~e high risk to which Carlsbad citizens are being exposed every time a new SG/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 poinfed 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 SG
roflout exposes to citiz_ens and especially chil.dren and electro-sensltive peopie fearful of harmful health and safety
consequences,
June 23, 2021 4 Item #1 Page 23 of 38 Dec. 14, 2021 Item #16 Page 52 of 252
I and other concerned citizens (including the hundreds of petition signers submitted to the City Co,uncil and officials on
Jariuary 21) seek an urgent moratorium on 5G wireless deployment. The Cjty has a' legal right to t ake emergency action
using the Precautionary Principle or precautionary approach which is beirtg 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 5G deployment without reservation or expforing 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 a pproa'ch incorpo.rating public input to either ban or
severely restrict SG 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 healt h dange.rs of wireless technology
have ra'ised serious issues that have not yet been addressed by the FCC. Note, '{public partkipation" and exploring
"alternate courses of action11 are required to ensure a "positive approach to health protec;tion .. " Applying precaution
to ach;eve more health-protective decisions in this context requires a set of precautionary considerations
throllghout me whole cycle from problem framing, knowledge production; idenf tficafion and characterizetion of
risk, risk management, post-implementation 'follow-up, identification of knowledge gaps and research needs
and back again. Such in~truments as analysis qfaltemative courses of action, expanded sc;entifiofools,
incentives for research and innovation and ,enhanced public participation can in fact en.sure a moreproactive
-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 last January
26 city council meeting how vulnerable young children are vs. adults since their brains are not yet funy
developed.
The precautionary principle: protecting public health, the
environm ent and the future of our ch ildren
http;ljwww.euro.who.int/ data/assets/pdf file/0003/91173/E83079.pdf {PRECAUTIONARY
PRINCIPLE GUIDELINES)
THE WORLD HEALTH ORGANIZATION EUROPE
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 SG wireless-deployment. Time is
of the essence:, however, as SG/Smart Cell towers and antennas have already beeninstalled and I assume are continuing
to be deployed with no consideration being given to the negative impacts, to citizens' health and safety. The time tq 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. l'vlay ! suggest
respectfurly that emergency actions should be takento avoid a breach of oath so. that Carlsbad officials tan demonstrate
thejr primary duty to protect citizens! nealth anp ~afety. To t hat end I would appreciate receiving an acknowledgem~nt
from you o.n what yout recommended actio'ns would be to resolve cifrzens' concerns and the time frame involved for
such actions. Please feei free t_o contact me at ~my time.
Stncerely,
lr~ne Tsutsui
Ph 760-602-0839
cc: City Clerk
https://www.technocracy.news/telecoms-face~major-global-resistance-t o~sg-rollout/
www.bioinitlative.org (peer reviewed scie ntists re.ports)
June 23, 2021 5 Item #1 Page 24 of 38 Dec. 14, 2021 Item #16 Page 53 of 252
Telecoms Face Major Global Resistance To 5G Rollout
196
190
lawsuit Ir:regulators vs. FCC fllleges theft
and redirection of estimated $1 trillion in
funds by the US telecom industry and FCC
to enable 50 rollout. America's households
USA14 and businesses have been charged at least
December nine times for broadband/fiber optic
services,. including the wiring of s.chools,
libraries, and ho~pitals-about $4000-
$7000 per household, and the total is way
over½ trillion·ctollars by_2016. (Book)
100 Italian municipalities officially stop
It:ilylO dcnsificd 4G/5G by adopting the
December precautionary principle according to article
32 of the Italian constitution and moratoria.
(see other countries protesting 50
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://w,nv.isde.org/5G appeal.pdf
Scientists and Docto rs Demand Moratorium on SG
https://www.saferemr.com/2017/09/5G~moratoriui1112.html
Sep 5) 2019 (updated Sep 17, 2019) As oftoday, 253 sci.~ntists and doctors from 42 nations have signed the The SG
Appeal which calls for a moratoriunt on the deployment o.f SG, the fifth generation of cellular technology.
CAUTION: Do not open attachments or click on Jinks unless.you recognize the sender and know the
content is safe.
CAUTION: Do not open ,1ftachments 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:
June 23, 2021 6 Item #1 Page 25 of 38 Dec. 14, 2021 Item #16 Page 54 of 252
Putting the Cart Before the H o rse -
The FCC's 115G First, Safety Second" Policy
BY: ALBERT CATALANO, Coun,..,el, ERIC (,"OTTING; Partner,
and TIMOTHY D.OUGHTY., Associate~ Keifer and Heckman, I.LP. Washington D.C.
. ,, .
~ '.:.t.2.¥1i&i/m;_:i;jj,, .. . ,>-,~-•• \:,j'' :/,
In September 2018, the Fe~eral Comnmrucations Commission {"'FCC" or ''Com-
mission"~ r.ele~sed a,Dedaratocy Ru~ ,vith the goal of. atc.~erating the deploy-
ment of :, G wu:eless broadband servx:es across. the country ( Small .Cell Order" or
"Order").1 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 gqnernticin· wirele;::s net-
work technology-or 5G a~ itis more commonly knQwn ·~ greater ·wireless speeds and
lower larencywill lead to innovation and µ$es such as augmented and virtual reality,
the Internet of Things, snwrt homes, smart c;lties _and autonomous ,cars. However, in
order to win <'the 5G race,'' hundreds of thousands of small cell transmitters must~
deployed on a nati~nal scale artd m den·sely populated areas.
l11e FCC's carrier-centric Order has and safety.
had selieral controversial effects on local Montgomery County7 Maryland ap-
jurisdictions: (i) limiting state and local pealed the Small Cell Order based on the
regulatory authority over wirele,ss infra-RF issue and its case has been consolidated
structure deployment; (ii) mandating that in the United States Court of App·eals for
fees for carrier use of public rights-of-way the Ninth Circuit with numemus appeals
("ROW") and facilities i.vithin the ROW challenging other parts of the same order..
be. limited to costs; and (iii) rushing the Specifically, Montgomery County is asking
deployment of huridreds of thousand~ of the Ninth Circuit to dete1"mine \vhether the
5G transmitters. in.to residential areas and FCC violated the National Em,ironmental
other public sp'ace.c; without ever consid-Policy Act and theAdtninistrative Ptoce-
ering if the. Commission's decades-old dure Act by failing to condrict an en:viron-
Radioftequency ("RF"} safety standards mental analysis of the,RF standards and
tema in sufficient td protect public hdth potential 5G health risks, or explain.why
it did not conside_r whether its own existing
RF standards will be protective of human
health in a new 5G wodd.
The FCC'S: RF Exposure Rules
The FCC has an obligation to evaluate the
risks of human exposure to Rf. e.qergy under
various statutory and regulatory provisions,
indudi:og the Nationat tuvimnqiental Pol-
icy Act of 1969 {."NEPA"), which requires
Feder<1l agencies to assess the effects of their
actions op. the quality of the human environ-
ment. 3The Commission has long recog-
nized its tesgons~bilii;y to evaluate whether
.fCC-regulated RF transmitters and faci.lides
could harµi the public health.4
.In 1985, the Commission adopted a 1982
American National Standards fnstitute
("ANSI") stat1dard for RF radiation omhe
envirbmnent.S The ANSI standard·was
fairly basic and only contained one set of
exposure limits. In l992, ANSI replaced .its
1982 standard and set but exposure criteria
for "controlled environments" (like indus-
trial locations only aq:.essible to employees
and contractors) and "tmcontmlled environ-
ments" (typically accessible by the general
public).6 A year later, in 1993, the FCC
initiated a rulemaking proceeding to. update
its ru, exposure sta11.dards ba.'!ed on the
1992 At"l'SI standard. 7
In enacting the Telecommunications Act
of 1996 ("Act'~), Cong;:ess required the FCC
to complete its·on-goingRF prnceeding arid
adopt new niles),o TheAct·also preempted
State and local governments from regu-
lating ~':t,e1:sonal wireless service" facilities
based 611 the effects. of RF emissions if those
facilities comply with the Commission's RF
regulations.9 ·
Based on sciei1tific knowledge ar che
time, the rules adopted by the Commission
in 1996 were designed to protect only
against the therrnalcffocts 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 lnnits
14 l Municipal Lavvyer Excerpted from Municipal Lai~ei-: The Joumalof Local Government,La'w September/October 2019
June 23, 2021 Item #1 Page 26 of 38 Dec. 14, 2021 Item #16 Page 55 of 252
based on potential non-thermal effects.,
such as cancer, neurological impacts, and ·
immune system deficiencics.1°
Also, when these rules were adopted
nearly 23 years ago, the typical h~ht
for free standing wireless base statioi;i
towers was between 50 and 200 feet
ahove ground.11 Often these towers were
in locations along highways and far from
residential or commercial areas. In con-
trast to the longer wavelengths of <=arlier
technologies which allowed cell towers
RF Exp.o sure Research
Much research has occurred sin.ce the
FCC adopted its existing RF rules back
in J996. 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 risk.s, such as carcinogenkity; DNA
damage and genotoxicity, reproductive
impacts (e.g., low sperm counts), and
neurologic effects {e.g., behavioral issues
in children).14
· to be spaced miles_ apart, the 5G wireless
transmitters covered by the FCC's Order.
will reiy on higher frequency milli..tneter
wavelengths t.11at car.ry massive amounts
of information only short distances.
This research and the associated
concerns with noJ1,0thermal irnpact-s is
world-wide. In 2015, over 200 scientists
· • from 42 countries, induding the United
States, sent a letter to the United :l>Tations
: and World Health Organization stating As a result; small cellpoles (sud1 as
streetlights and lamp posts) ,vil.l have 5G
transmitters that are less than 50 ft. off
the ground and "-viU be located only a few
hundred feet or less apart in tights-of-
way like sidewalks and allqways, only
yards from homes and businesses. Yet~
despite this vastly different e.11vironment
for 5G, in its Order the FCC summarily
dismissed the reque..-.ts of Montgom,ery
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 noted1 under the Act, state and local
governments have no authorit:yto :r:egulate
potential health impacts of RF emissions
from wireless transmitters provided thar
those installations comply ·with federal
safety standards. {nstead, the respon~ibil-
it:y to protect the ·pubuc from dangerous
RF levels-lies with the FCC12
Given that the FCC ha..~ not updated
its RF exposure standards since l996,
and that an accelerated 5G deployrttent
on a national scale will involve hundred~
of thousands ·of s.rnall c.ell transmitters in
de11sely populated areas, Montgomery
· County appealed theSm.-.11 Cell Order and
argues that the FCC had a legal duty under
NEPA and the.APA to _reevaluate it<i RF
standards before taking forther action nn
the nationwide implementation of small
cdk Montgomery County note<: that
this dui:y is particularly relevant in light
of recent research on the heal th risks that
potentially could .be associated with 5 G
deployment. 13
June 23, 2021
that." [b]ascd upon peer-teviewed, pub-
lished research, we l;tave 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
ris~, cellular stress, increase in-harmful
free radicals, genetic damages, structural
and functional changes of the repro-
ductive system, le1:1rning and memory
deficits, r andl neurological disorde:rs}'15
In 2017, se\·eral hundred ex-perts from
the United States and around the world
sent a letter to the European. U11ioix
requesting a moratorium on 5G tech-
nology until the "potential hazards for _
human health and the envir_onment have
been fully investigated by scicntistslnde•
pendent from industry." They note that
5G will contribute to cumulative RF
exposures -i.e., an "increns.e[d]-expo-
sure to radiofrequern:.y electromagnetic
fields (RF-EMF) 011 top of the 2G~ 3G,
4G, Wi-Pl, etc. for releconwiunications
alrea.dy i.o pfoce.''i6-•
In light of this research, some scien-
tists and academics \V"a[Il that the FCC's
curreht.RF 'standards, which arc limit-
ed to addressing thermal effects, may
_not be ptotective of human heaith. By;
way of example, the Biolnitiative 2012
report (induding·updates through 2017)
revie,vs over 1,800 studies-showing
various adve.r,se health impacts from RF
and, based on that research, maintains
that the current FCC standards do not
adequately protect the publk health.17
As a resuli:, they recommend further
research be conducted on non-thermal
effects before SG is widely ayailable.
FCC Review ofRF Standards
Though the Commission has not up-
dated its RF exposure standards since
19'.96, it did initiate a review of those
stindards :in 2013; seeking comments
to determine whether its RF expo-
sure limits and policies needed to he
reassessed.1s The FCC cited to both its
NEPA obligations and other statutoty
provisions as justifying the review.19
The Commission suhseq.uently
received over 900 submissions in its
2013 docket, many of them focusing
on non-thermal risks posed by RF
radiation.20 However, its review of
the RF standards stalled and to date
. the Commission has not made, any
determinations in this proceeding (or
any o.ther p.roceeding) oh whether the
cui-rent RF standa,:ds remain protec-
tive of human health or whetli.er the
installation and operation of SC small
cells will pose health :r:isks. zi
.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 cur.rent
RF standards and their ability to pro-
tect local citizens ill a 5G environment.
Montgomery County repeatedly urged
the FCC to reevaluate th.e standards
and determine rf they remain protec-
tive of human health. Representatives
of the County met with Commission
foadership and filed comments request-
ing that the FCC delay rulema.kings
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.22
In it-s Order; the Cprnmission responded
to thes-e serious ;ind legitimate concerns
about public health with a single terse
footnote, stating "Jwle disagree" with
ionceµis ra.ised about Rf emissions from
5G small cell fadlities. The FCC empha-
si'.led "nothing in this Declaratory Ruling
changes the applicability of the Com-
mission's existing RF emissions exposure
Conlhttted on page 16 "
Seprember-Ocwhc,: 1019 l Vol. 60 No, 'i I 15
Item #1 Page 27 of 38 Dec. 14, 2021 Item #16 Page 56 of 252
5G Fn:st, Safety Second cont'd from page 15
rules."23 There was no discussion by the
FCC of potential no:ti-.thennal RF effects
or any indication when it would complete
the 2013 RF proceeding.
Questions to be Addressed by the Ninth
Circuit
TI1e ~inth Circuit will now decide wheth-
er by refusing to substantiyely addres.~
RF/public health issues in the Small Cell
Ordci; the FCC violated NEPA and/or
the APA. Specifically, the issues hefore che
Court arc:
Did the FCC violate NEPA when it
failed to either: (i) explain why that
statute does not apply to the Otder;
or· (ii) conduct an environmental.anal-
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
sraadards protect against potential
SC health risks; or (ii) address i;ele-
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"
enriroomeJ;J.t.25 In particular, for "major
Federal actions significantly affecting the
quality of the human environment," the
agency must prepare a "detailed stare-
ment" on the "enviro1m1ental impact of
the proposed ac,.tion" (called an E_nviron-
mental Impact Statement or "EIS").26 At
a minimum, the agency must ptepare a
preliminary Envirom1iental Assessment t-o
detennine whether the potential for such
an impact exisrn and an EIS is therefore
require.cl. v While NEPA does not impose
any substantive envircnmental mandates,
it does require that agencies follow certain
procedures for assessing environmental
impacts of their decisions. 28
Un.fortunat.ely, 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.
June 23, 2021
Imtead, the FCC responded to comments
urging it to complete its 2013 review of the
RF standards before finalizing the Ord.er
by simply staring that it "disagreed" with
comrnenters who opposed the .ruling on the
basis of concerns regarding RF emissions.
There was zero analysis•by the Commission
as to whether the cui:rent RF standards
-enacted nearly 23 years ago -will be
protective of human health in a new 5G
environment,
The FCC's decision to move forward
with 5 G infrastructure without considering
the health effects of RF vrolates ::NEPA. The
Order itself is a "major federal action,"
within the scope ofl\nPA, because it
involves "[a]doption of official policy, such
as rules, regulations and niterpretarions"
pursuant to the APA. 29 In the FCC's own
words, the Order was an exercise of Com-
mission a uthorir-1 to "'i.~ue interpretations
of the statutory language and to adopt
implementing regulations that clarify and
specify the scope and effect of the Act."Y-1
Moreove,; the Order is a "major feder-
pose a sub,rantial risk of non-thermal
effects, the FCC cannot ignore its NEPA
obligations to review and ana)y,.e this
critical issue. NEPA is designed to force
agencies, like the FCC to confront head-on,
rather than ignore, these uncerrainties.3'
What is partirularly 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. 1n the 1996 Acr.,
Congress directed the FCC to pr.omulgate
RF standards that are protective of human
health, while preempting state and local
governments from regulation in thii:; area.37
Jn 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 n-po~ure lcvds.38 Yet despite
this mandated obligation to protect the
public health, the FCC ignored irs NEPA
obligations in the rush for nationwide
migration to SG.
al action" because it is an activity that is The FCC's APA Violation
"potentially subj~t to federal coutrol and Similar to the FCC's shortcomings W1clcr
responsibility" or is "regulated" by a Fed-NEPA, the FCC also v:iolated the APA .
eral agency.3C·Tuere,is no question that the because it failed to consider whether the
Small Cell Order regulates activities that · current RF standardi; will fully protect
are subject to Federal controi and respon-the health and safety of citizens living and
sib:ility -it specifically establishes rules that working directly adjacent to 5G small cells
municipalities must follow when reviewing and did not explain why it ignored this
carrier applications for the installation of relevant factor. Under the APA, courts
small cells and the provision of 5G services will strike down agency action as arbitra(y
in public rights-of-way.32 and capricious if the agency has, among
In addition, the Small Cell Order "may other things, "entirely failed to consider an
significantly affect the qu11lity of the human important aspect of the problen1."3~
envirpnment/133 SG deployments and op-The FCC itself has recogni7.ed that it has a
crations will see the densification of trans· . continuing obligation to revise the RF stan-
mitters in neighborhoods. and public ~1Jaces dards as research on pote1itial RF health
in close proximity to.households .and impacts and wireless technology evolvcs.4~
businesses. Commenters noted that recent In the lase 23 years, sigl'1ificant ·research has
studies,conductedafter the 1996 RF sta11-been conducted and scientists and academ-
dards were adopted, have raised concerns ics have warned that the fCC's current RF
about pubhc health and safety, including standards may not be protective of human
potential RF-related risks associated with health. ft goes without ~-aying, moreover,
the anticipated use of 5G urillimeter waves. that wireless technology has evolved.
):o scientific certainty or consensus, When the fCC's current RF i:;tandards
however, is required to constitute a signifi-were adopted in 1996 the first ever flip
awt effecr. 34 The point of 1\1EJ>A is not for phone had only been on the market a
agencie.~ to make the determination that few months, which boasted cutting-edge
significant effects on the human environ-fearurcs like the ability to receive SMS text
ment wiU occur, but rather to "insur[e) that messages and a vibrate function in place
available data is gathered and analyzed pti-of a .ring tone. 5G technology will look
or to the implementation of the proposed completely different.
action."35 Therefore, .even if studies haYe Whether the 1996 RF standards remain
not conclusively shown that RF emissions protective of human health, including .. my
Item #1 Page 28 of 38 Dec. 14, 2021 Item #16 Page 57 of 252
potential non-thermal risks, is a relevant
factor that the FCC should have consid-
ered when promulgating the Order. By
the Commission's O'-"il admission, the
Order will hasten the deployment of 5G
facilities and the provision of services.41
This means more small cells, in n:iore
lo.cations, and sooner than later. Beqiuse
RF safety issues were implicated by rhe
Small Cell Order it was incumbent on
the FC'.,C to determine whether the Order
would increase harmful RF exposures in
residential and public areas, particularly in
light of the fact that countless 5 G antennas
.spaced on]y about hun~red feet apatt v,ill
be placed in close proximity to homes and
businesses.42
The Rest of the Story -
The :FCC Finally Takes Action .
Just as this article was going to publica-
tion -and with the Montgomery wm1ty
lawsuit still pending -the FCC announced
that FCC Chairman Ajit Pai was circulat-
ing a :proposal to rellow Commissioners
that would mainrain tbe Commission's
RF exposure limits. According to the
press release, the item would resolve the
2013 Notice oflnquiry that sought public
input -0n whether to strengthen or relax
existing RF exposure limits. In addition,
the item wotild establish a unif01m set of
compliance guidelines -regardless of the
type of service or technology involved -for
determining how entities will assess their
compliance with the RF standards. Finally,
the item would seek comment on estab-
lishing a rule for determining compliance
with the RF exposure st;mdard for devjces
operating at higher frequencies.
Conclusion
Regardless of any potential benefits that
deployment of 5G 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
th.e review of its RF standards before
opening the floodgates fot 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.
June 23, 2021
Albert Catalano. Counsel at Keller and
::: ~ Heckman !lP. has 30 yeais of experience in
.J ._7, telecommunications reguf.my, legislative,
a • itigation and tran:saciional matters.
His practice focuses on broadband and
wireless communications. and on 56/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. infurmation transfer, technology developments,
licensing issues and international satellite matters.
Em: Gotting is a partner in Keller and
Heckman UP's litigation and environmental
practice groups spetia&ting in complex civil
and appellate matters. with a locus on toxi&
tort, environmental, product liability, and corporate litiga-
tion. He is a fOfJ!ler trial at1Dmey atd1e U.S. Department of
Justice, Civil Division, Environmental Torts Sectiori'. and his
experience includes clilSS actions, mass.tort litigation, and
agerley enforcement proceedings. He currently serves as
lead counsel in Montgomery Countyv. FCC. No. 19-70147
(9th Cir.) challenging the FCC' s Small Cell Order based on
potential health and environmental impacts of
6G radiotrequency emissions.
,-.... T unothy Doughty is an associate in KeDer
! ~ ..J and Hedanan UP' s telecollllllWlications
~ '·: J praciire grnup wlmre he focuses on assisting
...t,,. "llfhd. r.orporam ciiaits and trade associations w'fth
various legal and regulatory matters before 111e Federal
CommUllications Commission (FCC), the Federal Aviation Ad-
ministration (FAA), courtsand 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.
to Z:00 GRz,ANSI, NewYork,NY
6. See FCC, In the Matter of Guidelines for
Evaluating the bzvironmental Effects of Ra-
di.ofrequency Radiation, Report and Order,
1996 FCC LEXIS 4081, at *7 (Aug. 1, 1996).
7; Td.at *8.
8. Pub. L No. 104•104, 110 Sta.t. 56 (1996).
9. 47 U.S.C. § 332(c)(7)(B)(iv).
10. FCC, OET Bulletin 56, at 8 (August
1999).
11. id. at 20.
12. Montgomery C'.ounty, Maryland's Open-
ing Brief, at 1 (19-70147) (9th Gt) {"Brief"),
https://www.beyondtelecomlawblog.com/5g-
small-cclls•2ttd-rf-health-concerns/.
13. Id. at 2.
14. ld. at 12-15.
15.Jd.atl.5.
.16. Id. at 1S-16.
17. Bio Initiative 2012 -A Ra#on:ale for
Biologically-based Exposure Standards for
Low-Tntensiiy Electromagnetic Radiation
(2017), https://bioiniriative.org/.
18. FCC, In the Matter of Reassessment of
Federal Communications Commission Ra-
diof requenc}' Exposure Limits and Policies,
First Report and Order; Notice of Ptoposed
Rulemaking and Notice of Inquiry, 2013
FCC LEXIS 1257 (Mar. 27, 2013).
18 Brief at 19-20.
19. Id. at 22.
20.Id.
21. ld. at 24-26.
23. Small Cell Order at n.72.
24. Brief at 4-5.
Notes 25. 42 U.S.C'~ §§ 4321, 4331.
1. Acc~ler_ating Wireless BtoadbandDeploy-26. 42 U.S.C. § 4332.
ment by Removing Barriers to lnfrastruc,-27. 40 C.F.R. § 1508.9.
ture Tnvestment, Declaratory Ruling and 28. Am. Bird Conservaoc.-y, Inc. v. FCC, 516
Third R~pon ;;1nd Ordei; FCC 18-133, WT R3d 1027, 1032 (D.C. Ci.J: 2008).
DocketNo.17-79, WCDocketNo.17~84 29.40 C.F.R. § 1508.18(b)(1).
(Sept. 27, 2018}. 30. Small Cell Order at CJ( 21.
2. Id. at par 1. 33. 40 C.ER. § 1508.18.
3. National Environmental Policy Act of 32. Brief at 40.
1969, 42 U.S.C. § 4321, et seq.; Small C~ll 33. 42 U.S.C. § 4332.
Order at n. 72. 34. Am. Bird Conservam:J~ Inc., 516 F.3d at
4. See,, e.g., FCC, In the Matter of Guide-1033.
lines for Evaluating the F.nvironmenta! Ef-35. Found. for North Am. Wild Sheep v.
fects of Radiofrequen,cy Radiation, Report United States Dept. of Agric., 681 E2d · 1172,
and Order, 1996FCC LEXIS 4081, at *4 1179 (9th Cfr.1982).
(Aug.1, 1996). 36.Briefat46.
5. See Report and Order, GEN Docket No. .17. See 47U.S.C. § 332(c)(7)(B)(iv}.
79-144, 100 FCC 2d 543 (1985): Mcm-38. Briefat37-38.
orandum Opinion and Order; 58 RR 2d 39. Moior Vehicle Mfrs. Ass'n v. State Farm
1128 (1985l;seealso·ANSI C95.l-1982, Mut. Auto. Ins. Co., 463 U.S. 29,43 (1983).
American National Swulard Safety Levels 40. Brief at 11-12, 19, 52.
with Respect to Human Exposure to Radio 41. Id. at 53.
Frequency Ekctromagneti.c Fields, 300 kHz 42. Id. at 54. M..
· Septemht:r Ou obc1 20! 9 I Vol 60 No 3 I 17
Item #1 Page 29 of 38 Dec. 14, 2021 Item #16 Page 58 of 252
Sent
To:
Subject
.... _,,_ '"'----• •V-••-·.;i,i--.::z.•---. -·-.4
Tuesday, January 28, 2.020 11:48 AM
'irenegdnight@earthlink.nt'
DOCKET #S LAWSUITS VS. FCC
yoffugeoeOregonetalvFCCetalDock etNo19 703449thCirFeb082019Court? 15 78065073
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 NTC Retained] [COR LO NTC Retained]
BL-145
Sep24,2019
Reg.uest Filed (ECF) lntervenors City of Arcadia, City of Bellevue, City of Burien, City of Bur~ing~me,
City of Gig Harbor, City of Issaquah, City of Kirkland, City of las Vegas, City 6f Los Angetes,
City of Monterey, City of Ontario, City of Piedmont, Oty of Portland, City of •San Jose, City of
'Shafter, City of Yuma, County of Los Angeles, Culver City and Town of Fairfax in 19-70143,
lntervenors 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 ~f Los Angeles, City of
Monterey, City of New York, Gty of Ontario, City of Piedmont, Crty of Portland, City of San
Jacinto, City of San Jose, City ofShafter, City of Yuma, County of Los Angeles, Culver City
and Town of Fairfax in 19-70124, lntervenors City of Arcadia, City Qf Belfevue, City of
Burien, City of Burlingame, Qty 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 pf 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 19.70144, 19-70146,
lntervenors City of Albuquerque,. New Mexico, City of Arcaaia, California, City of Baltimore,
Maryland, City of Bellev:ue, Washington, City of Brookhaven, Georgia, City of Burfen,
wa·shington, City of Burlingamer, California, City of Culver Cfty, California, City of Dubuque,
Iowa, Ci.ty of Emeryville,,Califomia, City of Gig Harbor, Washiington, City of Issaquah,
Washingtoh, City of K,irkland, 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, O.regon, City of Rockville, Maryland, City of
San Bruno, California, City of San Jacinto, Cqlifornia, City of San Jose, California, City of
Santa Monica, California, City of Shafter, California, City of SugarJand, Texas, City of Yuma,
Arizona, Couhty of Los Angeles, California, League of Nebraska Municip1:1fltles, Michigan
Municipal League, National league of Cities, Town of Fairfax, california, Town of
Hillsborough, California and Town of Ocean City, Maryland in 19~70326) lntervenors City of
Albuquerque, New Mexico, City of Baltimore, Maryland, City of Brookhaven, Georgia, City
of Dubuque, Iowa, City ofEmery,ville, California, City of La Vista, Nebraska, City of Medina,
1
June 23, 2021 Item #1 Page 30 of 38 Dec. 14, 2021 Item #16 Page 59 of 252
BL-161
Jan 14; 2020
Washington, City of Papillion, Nebraska, City of Plano, Texas, City of Rockville, Maryland,
City of San Bruno, California-, City of Santa Monica,. ca!ifomia, City of Sugarland, Texas,
League of Nebraska Municil}alitiesf Michigan Municipal League, National League of Oties,
Town of Htllsbcirough, California and Town of Ocean City, Mary!a nd in 19-70339, Petitioners
Bloomfield Township, Michigan, City of Ann Arbor, Michigan, City of Atlanta; Georgia, City·
of Aust in, Texas, City of Boston, Massachusetts, City of Chicago, I Iii nois, City of Colle~ Park,
Maryland, City of Dallas, Texas, City of Gaithersburg, Maryland, City of Lincoln, Nebraska,
City of Myrtle Beath, 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 T<1koma Park, Maryland, Clark County, Nevada, County of Anne .Arundel, . .
Maryland, District of Columbia, Howard Cou.!'lty;Maryland, Meridian Township, rylichigan,
Michigan Coalition fo Protect Public Rights-of-Way, Michigan Townships Associafo:m,
Montgomery County, Maryland, Texas Coaliti"ori pf Cities for Utility Issues and tntervenors
Crty of Albuquerque, New Mexico, City of Baltimore, Maryland, City of Brookhaven,
Georgia, City of D1Jbuque, Iowa, Oty of Emeryville, California, City of La Vista, Nebraska, City
of Medina, Washingt()n; City of Papillioh, Nebraska, City of Plano; Tex~s, City of Rockville,
Maryland; City of San Bruno, .California, City of Santa Monica~ C:1lrromia~ City of Sugarland,
Texas, league of Nebraska Municipalities, Michigan Municlpalleag_ue, National Leagve of
Cities, Tt;>wn 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]. Oate of service: 09/24/2019. [11442651} [19-70123, 19-70124, 19--
70125, 19-70136, 19-70144, 19~70145, 19--70146, 19-70147, 19-70326, 19-703.39, 19-
70341, 19-70344] (Van E.iton, Jos~p
Reguest Filed (ECF) Acknowledgrneatof n,earing notice by Attpmey Mr. Joseph Leonard. Van E:ato11,
Esquire for lnfervenors City of Arcadia, City of Bellevue, City of Burien, City of Burlingame,
City of Gig H~rbor, City of fssaquah, City of kirkland1 City of Las Vegas, City of Los Angeles,
City,of Monterey-, City of Ontario, City of Piedmont, City. of Portland, City ofsan Jose, City of
Shafter,. City of Yuma, County oflos Angeles, Culver City and Town of Fairfax in 19-70123,
Attorney Mr. Joseph LeonardVan Eaton, !:squire for lnterv.enors City of Arcadia; City of
Bellevue, City of Burien, City ofBurlingame, City of Gig Harbor, City of Issaquah, City of
Kirkland, City of Las Vegas, tity of Los Angeles, City of Monterey~ City of Ontario, City of
Piedmont; -Oty 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, 19-70125, 19a0136,.
Attornef Mr. Jo~_eph ~onard Varr 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 fssaquah, City of Kirkland, City of las Vegas, City of Los AngE!les,
County of Los Angeles, City of Monterey,; Otyofbntario, City of Piedmont~ c;ify of Portland,.
Oty ot:San Jacinto,,City of Shafter.and City of Yuma ih 19·70144, 19~701~6, Attorney Mr.,
Joseph LeQnard Van E;aton; Esquire for Intervenors City of Baltimore, Maryland, Michigan
Municipal Leag!le, City of Albuquerque, New Mexico, N.atio_nal League of Cit{es, Town of
Ocean City, Maryland,, City of Brookhaven, Georgia-l City of Dubuque, Iowa, City of
Emeryville, California, City of La Vista, Nebraska, City of Medina, Washin:gto11, City of
Papillion, Nebraska, City of Plano, Texas, City of Rockville, Maryland, City of San-Bruno,
California, City of Santa Monica, CalJfornia, City of Sugarfand, Texas. League of Nebraska
Municipalities, Town of Hillsborc,ugh, California, City of Arcadia, California, City-of Bellevue,
Washington, City of Burien, Washington, City of Bl)r/ingamer, California, City of Culver City ,
Califo~nia, City of Gig Harbor, Washiingtc;n:i, City of Issaquah, Washington, City of Kirkland~
Washington, City of Las Vegas1 Nevada, City of Los Angeles; California, City ofMontere.y,
California, City of Ontario; ta:lifornia, City of Piedmont, California, City of Portland,. Oregon,
City of San Jacinto, Cafifc,mja, City·of San Jose, california, City of Shafter, C:i)ifomia, City of
Yuma, Arizona, County of Los Angeles, Catffornia a.nd Town of Fairfax, California and
2
June 23, 2021 Item #1 Page 31 of 38 Dec. 14, 2021 Item #16 Page 60 of 252
' F I , ff
June 23, 2021
Attorney Mr. Joseph Leonard Van: Eaton, Esquire for lntervenors City of Baltimore,
Maryland, Michigan Municipal League, City of Albuquerque, New Mexico, National league
of Cities, Town of Ocean City, Marvrand, City of Brookhaven, Georgia, City of Dubuque,
Iowa, City of Emeryville, California, City of la Vista, Nebraska, City of Medina, Washington,
City of Papi!Jion, Nebraska, qty of P!ano, Texas, City of Rockville, Maryland, City Qf San
Bruno, California, City of Santa Monica, California, City of Sugarland, Texas, league of
Nebraska Municipalities, Town 9f Hillsborough, California, City.of Arcadia, Ca!iforn,ia, 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, CaUfornJa, City of
Monterey, California, City of Ontario, California, City of Piedmont, California, City of
Portland, Oregon, City of ~an Jacinto, California, City of San Jose, California, City of Shafter,
California, City of Yuma, Arizona, County oflos Angeles, California and Town of Fairfaj(,
California in 1~-70326, Attorney Mr. Joseph Leonard Van Eaton, Esquire for lntervenors 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
Emeryviife, California, Michigan Municipal league, rown of Hillsboro.ugh, California, City of
ta 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 Leona.rd Van Eaton, Esquire for Petitioners City of Austin, Texas, City of
Ann Arbor, Mich[gan, County of Anne Arundel, Maryland, City of A,tlanta, Georgia, City of .
Boston, Mas~achusetts, City of Chicago, Illinois, Clark County, Ne~ada, City of College Park,
Maryland, City of Dallas, Texas, District of Columbia, City ofGaither~burg, Maryland,
Howard County, Maryland, City of Lincoln, Nebraska, Montgomery County, Maryland, City
· of Myrtle Beach, .South Carolina, City of Omaha, Nebraska, 'Cit:Y of Philadelphia,
Pennsylvania, Cjty of Rye, New York, City of Scc:1rsdale, Nf?W Yc;irk, City of Seat Pleasant,
Maryland, City ofTakoma Park, Maryland, Texas Coalition of Cltj~s for utility Issues,
Meridian Township, Michigan, Bloomfiefd Townshjp, Michigan, Michigan Townships
Association, Michigan Coafition to ProtectPubtia Rights-of-Way and lntervenors City of
Albuquerque, Ne~ Mexico, NationaHeague of Cities, City of Brookhaven, Georgia, City of
Baltimore, Maryland, City of Dubuque, Iowa, Town of Ocean City, Maryland, City of ·
Emeryville, Caiifornia, Michigan Munfdpal League, Town of Hillsborough, CaJifomfcJ, 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, Cal)fornia, City of Santa Monica,
Californfa, City of Sugar!ai'td, Texas and league of Nebraska Municipalities and Attorney Mr.
)oseph t.eonard Van E.aton, Esquire for Petitione.rs City ofAustin, Texas, City of Ann Arbor,_
Mi$:higan, County of Anne Arundel, Maryland, City of Atlanta, Georgfa, City of Boston,.
Massachusetts, City of Chkago, Illinois, Clark County, Nevada, City of College Park,
Maryland, City of Dallas, Texas, District of Columbia, City of Gaithersburg, l\ilar.yland,
Howard County, Maryland, City of Lincoln, Nebraska, Montgomery County, Maryland; City
of Myrtle Beach, South Carolina, City of Omaha, Nebraska, City of Philadelphia,
Pennsylvania, Clty of Rye, New York, City of Scarsdale, New 'fork,. City of Seat Pleasant,
Maryland, City ofTakoma Park~ Maryland, Texas Coalition of Cities for Utility Issues,
Meridian Township, Michigan, Bloomfield Township, Michigan, Michigan Townships
Association, Michigan Coalition to Protect l>ublic Rights.,of-Way and lntervenors City of
Albuquerque, New Mexico, National league ofOties, City of Brookhaven, Ge?rgja, City of
Baltimore, Maryland, City of Dubuque, Iowa, Town ofOcean City, Maryland, City of
Emeryv[Ue, Caltfc,rnia, Michigan Muni(:ipal League, Town of Hillsborough, California, City of
la Vista, Nebraska, City of Medina, Washington, City of Papillion, Nebraska, City of Plano,
Texas, City Qf Rockville, Maryland, City of San Bruno1 Cafifornia, City,of Santa Monka,
California, City of Sugarland, Texas and League of Nebraska Municipalities in 19~70341, 19-
3 Item #1 Page 32 of 38 Dec. 14, 2021 Item #16 Page 61 of 252
June 23, 2021
70344. Hearing ln 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, 19-70344] (Van Eaton, Joseph)
Item #1 Page 33 of 38 Dec. 14, 2021 Item #16 Page 62 of 252
Hector Gomez
From:
Sent:
Cc:
Subject:
--·-•Original Message•---
Council Internet Email
Tuesday, February 18, 2020 9:41 AM
Curtis Jackson; City Clerk
FW: Sg concerns
From: Stephanie Raish <stephanieraish@gmail.com>
Sent : Saturday, February 15, 2020 10:43 AM
To: Council Internet Email <CityCouncil@carlsbadca.gov>
Subject: Sg concerns
Dear Mayor Hall and City Council Members,
All Receive -,\genda Item U I ~
For the Information of the:
..... c.'t{PJ1JNCIL
Date.~•cA :<-.. cc i"--
CM JC_ COO ')(' DCM (3) E_
SG, 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.org/scientific-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 5.G legislative code is evidence that there are in fact many ways to effectively
delay, or in some.cases, stop 5G antennas from being installed nea_r residences, day care centers, schools, and other
sensitive areas.
Withthat said, I respectfully µrge you to adopt the sample code foLJnd b.elow, in part or in full, to impose restrictions on
small cell deployments in Carlsbad neighborhoods."
s·incerely,
https://8a6b8cd0-359b-4b1b-b042-cdb0cdb8be26.filesusr.com/ugd/2cea04_66c5cc09a31045858fa03e31428054b8.pdf
Stephanie
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1
June 23, 2021 Item #1 Page 34 of 38 Dec. 14, 2021 Item #16 Page 63 of 252
Hector Gomez
From:
Sent
To:
Council Internet Email
Monday, February 10, 2020 9:25 AM
City Clerk
Curtis Jackson Cc
Subject: FW: Portland, Oregon Mayor Rallies Support for $G Lawsuit with FCC
From: Karen Rich <Dakini22459@protonmail.com>
Sent: Monday, February 10, 2020 8:58 AM
To: Matthew Hall <Matt.Hall@carlsbadca.gov>
All Receive -Agenda. Item # J :;i
for the tnformotion of the: cni COUNCIL Date,2,J>O \)i CA X_ cc ~
CM _ X coo )( DSM (3) )(
Cc: Priya Bhat-Patel <Priya.Bhat-Patel@CarlsbadCA.gov>; Cori Schumacher <Cori.Schumacher~Carlsbad<;A.gov>; l<eith
Blackburn <Keith.Blackburn@carlsbadca.gov>i Celia Brewer <Celia.Brewer@carlsbatlca.gov>; Scott Chadwick
<Scott.Chadwick@cartsbadca.gov>; Council Internet Email <CityCouncil@carlsbadta.gov>
Subject: Portland, Oregon Mayor Ratlies Support for 56 lawsuit with FCC
Dear Mayor Hal!,
Here ·is an attlc;le describing the action Portia nd Oregon's Mayor Ted Wheeler is taking to resist the Federal Communications Comw1isSion (in
con~piracy with the Telecommunicat!ons Industry) illegal and uncon.stitutional mandates regarding 4G-SG/'$mall Cell' infrastructure.
We must stop the land,.power and money graba11d reclaim local control over local assets .
. You and the Carlsbad City Council have the legal authority resist the FCC.
DanviHe and Davis, CA are tal<ing similar action.
"I've sa!~: It before and I'll say it ag~in today: the FCC's attempt to assert national controi over local infrastructure traces is a
misguided invasion of tocat 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.
June 23, 2021 1 Item #1 · Page 35 of 38 Dec. 14, 2021 Item #16 Page 64 of 252
Hector Gomez
From:
Sent:
To:
Subject
Attachments:
Council Internet Email
Friday, February 7, 2020 4:06 PM
City Clerk
FW: SG Scare
Carlsbad SG.pdf
From: Michael McGrady <mcgradym@roadrunner.com>
Sent: Friday, February 7, 2020 8:12 AM
To: Council Internet Email <CityCouncil@carlsbadca.gov>
Subject: FW: 5G 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 SG 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•cetlp hones-wireless-cancer. html
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 citjzenry 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 ingra.ined 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-calts). In 1936 radio was to be announced as the scourge of the written page and was strongly protested. The first
wi-fi 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 tflem, ·but
please don't amplify their voice, their cause or think them the majority.
Laura and Michael McGrady
2741 Berkeley Ave
Carlsbad, CA 92010
June 23, 2021
1 Item #1 Page 36 of 38 Dec. 14, 2021 Item #16 Page 65 of 252
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 here.by
notified that any use or dissemination of this communication is strl'ctly prohibited. If you have received this email in error,
please notify us immediatdy, then delete this email
From: Keith Blackburn <l<eith.Blackburn@carlsbadca.gov>
Sent: Thursday, February 6, 2020 8:56 PM
To: M ichael McGrady <mcgradym@roadrunner.com>
Subject: Re: SG Scare
Dear Laura and Michael,
Thank you for taking the time to send ~he email. I have heard a lot of people blame Carlsbad for allowing SG. 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 <mcgradym@roadrunner.com> wrote:
Mr. Blackburn:
I just had delivered to my door a flyer decrying the city councif s malicious intent to roll out a SG
network in Carlsbad. This is the technological protest equivalent of anti~vaxers. The New York Times
more than most othel· 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 !ed to unwarranted fears of wireless technqlbgy.
https://www .nyti mes.tom/2019/07 /16/science/Sg-cellpho nes-wi reless-cancer.html
Just because some of us have jobs and no time fo[ this nonsense, please do not assume most of us .share
the same voice as those involved in thls uprising. Thai)ks for your time.
Laura and Michael McGrady
2741 Berkeley Ave
Carlsbad, CA 92010
Disclaimer: This message and anyfiles it may coniain are confidential and/or privileged information. It
is intended'solely for the use 9/ the individual or entity to whom they are addressed. tf you are not the
intended recipient, you are hereby notified that any use or dis~emination of this communication is strictly
prohibited. If you have received this email in error, please notify us immediately, then delete this email.
CA UT/ON: Do not open attachments or click on links unless you recognize the sender an
know the content is safe.
June 23, 2021 2 Item #1 Page 37 ·of 38 Dec. 14, 2021 Item #16 Page 66 of 252
Dear Carlsbad Neighbors,
Did you know the City of Carlsbad is planning to allow construction of new
5GfSmall Gell' 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 h.as 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 Wardorf schools wnere there rs NO technology.
Carlsbad and cities across the natlc,n are being bulJied by Big Telecom and the
FGC to adopt technology that will compromise the beauty, health, and security of
our communities. ft is the spe.cific 5G technology being used that wiU allow our
data to be collectec;f. These towers will allow companies to categorize our data,
and sen our data at the expense of our children's health.
Please get informed and involved. Together we GAN make a differ~nce. Attend
our local meetings announced on our Facebook page, Stop 5G Carlsbad. Check
out the many scientific studies at nttp://www~5~Q!.!filS.,_QoQ1, ema.il 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 ltem#l Page 38 of 38 Dec. 14, 2021 Item #16 Page 67 of 252
Tammy Cloud-McMinn
From:
Sent:
To:
Subject:
Attachments:
maril415@charter.net
Wednesday, June 23, 2021 11 :42 AM
City Clerk
Comments for June 23, 2021 City Council Meeting
Carlsbad City Council -SG.docx
All Receive -Agenda Item # j_
For the Information of the:
CITY COUNCIL
Datel,f1;b1cA vCC~
CM ~ -OCM {3)-=::----
Kindly distribute to the city council members and enter into the public record for today's l:!1eeting.
tThank you,
Maril Adrian
760 918 0680
CAUTION: Do not open attachments or click on links unless nize the sender and know the content i
safe.
1 Dec. 14, 2021 Item #16 Page 68 of 252
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 maier amendments to their original pq_licy (No. C035). Item 1 OA of
the Encinitas City Coun.cil 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, 2019 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 (tlle 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. Frre 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 pr-0tective 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 foster 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.
Dec. 14, 2021 Item #16 Page 69 of 252
Tammy Cloud-McMinn
From:
Sent:
To:
Subject:
Karen Rich, CHD/CA-SAN <KLR1959@protonmail.com>
Wednesday, June 23, 2021 11:55 AM
City Clerk
Comments for the Record RE: SG CELLULAR TECHNOLOGY AND WIRELESS
COMMUNICATION FACILITIES WORKSHOP
Dear Carlsbad City Council and Staff,
I am very interested in participating in a 'SG 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' 4GL TE/SG 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: SG wireless technology, Artificial Intelligence technology and OTARD technology.
4. Smc1rt 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 Dec. 14, 2021 Item #16 Page 70 of 252
Tammy Cloud-McMinn
From:
Sent:
To:
Subject:
Irene Tsutsui <irenegdnight@earthlink.net>
Wednesday, June 23, 2021 11 :59 AM
Oty Clerk
Comments for the Record RE: SG CELLULAR TECHNOLOGY AND WIRELESS
COMMUNICATION FACILITIES WORKSHOP
Sending t o you so that my comments will be presented by 2:00 pm today by your staff re the SG workshop scheduled at
4PM.
From: Irene Tsutsui [mailto:irenegdnight@earthlink.net]
Sent: Wednesday, June 23, 2021 10:55 AM
To: 'matt. hall@ca rlsbadca .gov'; 'keith. blackburn@carlsbadca.gov'; 'cori.sch umacher@ca rlsbadca .gov'; 'priya .bhat-
patel@carlsbadca .gov'; 'teresa.acosta@carlsbadca.gov'; 'scott.chadwick@carlsbadca.gov'; 'Jason.Haber@carlsbadca.gov'
Cc: 'Barbara.Engleson@carlsbadta.gov'
Subject: Comments for the Record RE: SG CELLULAR TECHNOLOGY AND WIRELESS COMMUNICATION FACILillES
WORKSHOP
Importance: High
Dear Mayor Hall, City Council and Staff,
I was given short notice of the SG 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 SG 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 fra,med 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
h·ad 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 whrch 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.org/cheryl/ ··
1 Dec. 14, 2021 Item #16 Page 71 of 252
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 m unidpalities. 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. Ifyou
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-them1al 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 saf~ty
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 ofte.r1
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:
ESTABL.ISHING 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 v-.rinds they should have been able to withstand. Malibu Mayor Andy Stern
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-power1ines6-story.html. The City can require the names of the individual principal WTF
2 Dec. 14, 2021 Item #16 Page 72 of 252
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 maxim~m 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 use.d 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. Discrepandes 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 says h/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 Dec. 14, 2021 Item #16 Page 73 of 252
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 i's 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 installat1on 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 imp.ortant 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 ~pplicant 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 a pp lying for the cell tower or the WTF ... If the town denies an applkation 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 Dec. 14, 2021 Item #16 Page 74 of 252
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 23rd, 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 cunently 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 na6on, 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) case 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 sjnce the two are related, if not 011 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 commodjtics 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 SG 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
5 Dec. 14, 2021 Item #16 Page 75 of 252
Tammy Cloud-McMinn
From:
Sent:
To:
Subject:
David j Freund <davidjfreund@gmail.com>
Wednesday, June 23, 2021 1:53 PM
City Clerk
Fwd: Comments for the Record RE: 5G CELLULAR TECHNOLOGY AND WIRELESS
COMMUNICATION FACILITIES WORKSHOP
----------Forwarded message ---------
From: David j Freund <davidjfreund@gmail.com>
Date: Wed, Jun 23, 2021 at 1:47 PM
Subject: Comments for the Record RE: SG CELLULAR TECHNOLOGY AND WIRELESS COMMUNICATION FACILITIES
WORKSHOP
To: <matt.hall@carlsbadca.gov>
Cc: <keith.blackburn@carlsbadca.gov>, <cori.schumacher@carlsbadca.gov>, <priya.bhat-patel@carlsbadca.gov>,
<teresa.acosta@carlsbadca.gov>, <scott.chadwick@carlsbadca.gov>, <Jason.Haber@carlsbadca.gov>,
<Barbara.Engleson@carlsbadca.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 ou reco nize the sender and know the content i
1 Dec. 14, 2021 Item #16 Page 76 of 252
Wireless Workshop Carlsbad City Council Meeting June 23, 2021 ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 77 of 252
Road Map 1. Technical Primer: What are These Things? 2. Legal Standards: What Federal, State and Local Laws Affect Deployment? 3. What's on the Horizon? ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 78 of 252
What are These Things? a quick technical primer on cellular technologies and facilities ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 79 of 252
--0 0 "O -::, 0 ol 0 "C C -.\ Network Densification and Het-Nets --~------------.----~---~ ~---~-~-_, --~-~~ ,,,........ LTE Coverage Layer ........... .. ,, . ' // I w 2G/3G I ---,,\ • EC------------...... LTE Capacity ;~Y-~t.--------........... ,,,' {! .......... ,, .... F1'u---........ ,"' ..,. .-===----' ~ J. · .... I \ , ' I \ // -. . \ / -. . ! >1W !/ LTE p1co/m1cro ·· · LTE p1co/m1cro < SW Enterprise Residential Public ,_,., ... ~ . macrocells provide coverage small cells and femtocells provide enhanced capacity and data throughput het-nets (heterogeneous networks) allow users (both ~~~: ~~-·~~ ... _,"" ,::;r:;--. -~--------ajl I< 1W human and machine) to access core networks thru multiple cell layers and/or technologies based on the fastest connection FemtoceU Femtocell/WiFi Femtocell/WiFi ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 80 of 252
~~;;=;::;;;;;;;::•, ..... ~_""',.-----_-_-_-_-_-_-_-_-___ _ If' Lu-..._ Lz -unconcealed antenna weatherhead for utilities routed thru external conduits equipment cage RRUS, DC suppressor, fiber distribution optional backup battery power meter distribution panel and disconnect switch ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 81 of 252
Dec. 14, 2021Item #16 Page 82 of 252
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ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 86 of 252
What Federal, State and Local Laws Affect Deployment? ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 87 of 252
47 U.S.C. § 332(c)(7) Personal Wireless Service Facilities Substantive Limitations • cannot explicitly or effectively prohibit wireless services or wireless facilities • cannot unreasonably discriminate between functionally equivalent services or providers • cannot regulate based on environmental effects from RF emissions to the extent such emissions comply with FCC regulations Procedural Requirements • must act on wireless application with a reasonable time given scope and project type • must issue a written decision based on substantial evidence in the written record ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 88 of 252
FCC RF Exposure Limits Basics • developed in 1996-97; recently reaffirmed by FCC • considers only thermal impacts from RF • state/LG cannot set their own standards but can check for compliance and regulate noncompliance Dynamic Exposure Limits • compliance depends on who's exposed; to what frequencies; at what distance from the antenna; at what power levels; and for how long • lower limits for general population; higher limits for "occupational" class (those w/ control over exposure) • sets maximum limit for general population at 50x lower than exposure required to change temp in a human cell ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 89 of 252
Figure 1. FCC Limits forMaxim:um, Permissible, Exposure (MPE) Plane-wave Equivalent Power Density 1,000~--~-~~---~--~--~~--~-~~ 100 10-5 1 0-2 \ \ \ \ \ \ \ Occupational/Controlled Exposure -- --General Population/Uncontmlled Exposure \ \ \ \ \ \_ / ---- -_,, ✓ ✓ /----/ ------0.11 I ------0'_,03 ,0_3 1 3 30 300 13.000 30,000 1300.000 1.34 1,500 100,000 Frequency (MHz) Dec. 14, 2021Item #16 Page 90 of 252
Why Does the Distance from Antenna Matter to the FCC? 100% of the Antenna1s output power in one rectangle (the antenna) Average 25% of the antenna1s output power in each rectangle at d2 d3 The Law of the Inverse Square Average of 11.1% of the antenna1s output power in each rectangle at d3 ATELECOM 1 W LAW FIRM PC 5 Dec. 14, 2021Item #16 Page 91 of 252
----FCC RF Safety Standards with No Math Measurable • • increase 1n temperature Where does the FCC set its standard? FCC's 100% General Population Limit Typical for Sma II Cells: L_ ~· = ~ =---Ql0 r-• \Cl sox1 Margin 2% of permitted Ill) "'2" ~ N Emissions of a fraction of 2% ~ " ,.._ ~ I-~ ~ = = = = J=:: 1= = -A TELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 92 of 252
RF Compliance Evaluation Assume "Worst-Case" Scenarios • maximum possible equipment output • perfect signal propagation • trespassers on/near the antennas Assess Accessibility • will the facility create emissions that exceed the FCC's maximum limits? • how likely would it be for a GenPop member to stand too long in front of the antennas? Mitigation Conditions {if needed) ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 93 of 252
47 U.S.C. § 1455(a) (aka Section 6409) State and local governments may not deny, and shall approve, any collocation or modification request for an existing wireless tower or base station so long as it does not cause a substantial change in its physical dimensions. ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 94 of 252
Substantial Change Criteria Towers Base Stations & ROW Height I[ 20 feet or ten percentJL 1 O feet or 1 O percent Width Ir Equipment Cabinets II Excavation Concealment Compliance with Prior Permit Conditions 20 feet or tower width 6 feet Ir 4 maximum II same, plus other complicated rules -within the leased or same, and some further owned area restrictions cannot "defeat" the concealment elements changes must comply with all prior conditions except limits on height, width, cabinets or excavation ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 95 of 252
6409 Declaratory Ruling 35 FCC Red. 5977 (Jun. 10, 2020) Reinterprets FCC 6409 Rules • shot clock commencement • reduced protections for concealment elements • reduced protections for prior COAs • changes maximum height limit for non-ROW towers • excludes certain equipment from "equipment cabinet" definition Legal Challenges Pending • Case No. 20-71765 (2019) ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 96 of 252
6409 Order WT Docket No. 19-250 (Nov. 3, 2020) Modifies Threshold for Substantial Change in Site Area • prior rule: any change in site area = substantial change • new rule: any expansion 30 feet or less = not a substantial change • applies only to towers outside the ROW Challenges Pending • petition for reconsideration filed 01/04/2021 • no judicial challenges pending ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 97 of 252
FCC's 2018 Orders Prohibits "Express" & "De Facto" Moratoria • must accept applications • cannot use traditional local tool to study the issue Small Cells -Less Discretion, Less Time • creates a new regulatory classification for small wireless facilities • establishes a national standard for an effective prohibition with new presumptions and remedies • adopts new, faster shot clocks for processing applications • limits pole attachment fees and local aesthetic regulations ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 98 of 252
"Small Wireless Facility" (l) Small wireless facilities, consistent with section l.1312(e)(2). are facilities that meet each of the following conditions: (1) The facilities-i) are mounted on structures 50 feet or less in height including their antennas as defined in section 1.1320( d). or (ii) are mounted on structures no more than 10 percent taller than other adjacent structures. or (iii) do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater· (2) Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of antenna in section l.1320(d)), is no more than three cubic feet in volume· (3) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume· (4) The facilities do not require antenna structure registration under part 17 of this chapter-(5) The facilities are not located on Tribal lands, as defined under 36 CFR 800. l 6(x); and (6) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in section l. l 307(b ). ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 99 of 252
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AT&T 4G by Crown Castle San Diego Dec. 14, 2021Item #16 Page 102 of 252
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Verizon 5G Only San Diego ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 104 of 252
Effective Prohibitions Fees • reasonable approximation of government's costs • only objectively reasonable costs are factored into those fees, • the fees are no higher than the fees charged to similarly-situated competitors in similar situations Aesthetics • reasonable (i.e., technically feasible) • published in advance ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 105 of 252
Mobilitie Alabama AT&T4G by Crown Castle San Diego Dec. 14, 2021Item #16 Page 106 of 252
AT&T4G San Diego ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 107 of 252
Shot Clocks Shorter Timeframes 60 days • small wireless facility "collocations" • all eligible facility requests under Section 6409 90 days • small wireless facilities on new structures • collocations not covered as an eligible facilities request or small wireless facility 150 days • everything else ... • new, freestanding non-small wireless facilities ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 108 of 252
Portland v. United States 969 F.3d 1020 (9th 2020) Challenged Small Cell/Moratorium Orders Mixed Result • upheld Moratorium Order, shot clock rules and limits on permit/license fees • struck down aesthetic/non-fee regulations Further Challenges • Ninth Circuit denied petition for reconsideration • Cert. Petition to US Supreme Court filed 03/21/2021 ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 109 of 252
California Public Utilities Code Section 2902 • municipalities cannot "surrender" police powers to the CPUC to regulate relationship between the public and utilities Section 7901 • grants telephone corporations a state-wide franchise to access and use the public rights-of-way to the extent necessary to provide telephone services • providers cannot incommode the publics' use • preserves aesthetic control over ROW facilities Section 7901. 1 • preserves reasonable time, place and manner regulations over how telephone corporations access and use the ROW • regulations must be applied equally to all providers ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 110 of 252
California Gov't Code § 65964.1 California state law "deems approved" any aP.plication_for a new or substantially changed wireless site when: 1. the LG fails to approve or deny the application within the applicable FCC shot clock timeframe; and 2. the applicant has provided all public notices required for the application; and 3. the applicant has provided notice to the LG that the application is deemed approved; ... and possibly ... 4. 30 days have passed since the notice date. ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 111 of 252
Local Law City's Hybrid Code-Policy Approach • Carlsbad Municipal Code§ 21.42.140(8)(165) • Council Policy No. 64 private property NA compliant w/ all location and design requirements all other applications public ROW compliant w/ all location and design requirements compliant w/ all design requirements but in discouraged location all other applications ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 112 of 252
Council Policy No. 64 Location Guidelines Preference Hierarchy • establishes priorities: • industrial/commercial over residential; • collocation over new sites; • existing/replacement structures over new ones • ROW can be "preferred" when adjacent to industrial/commercial zones or on major arterials Discouraged Locations • approvable only when applicant shows all more-preferred locations/structures are infeasible ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 113 of 252
Council Policy No. 64 Design Guidelines General Requirements • stealth designs to hide or disguise equipment • minimize overall height • compliance with federal RF exposure rules • ROW Facilities • minimize unnecessary equipment volume • underground whenever possible • allows some extra height to keep a slimmer profile • avoid unnecessary obstructions for vehicles, bicyclists and pedestrians ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 114 of 252
Council Policy No. 64 COAs and Operational Rules Avoid/Minimize Nuisances • noise and ambient light controls • regular maintenance requirements On-Going RF Compliance Obligations • permittee to submit as-built compliance report w/in six months after construction Abandoned Facility Removal Obligations 10-Year Permit Term Limits ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 115 of 252
What's on the Horizon? pending legislative, regulatory and judicial activities that impact local authority over wireless facilities ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 116 of 252
Proposed Legislation SB 556 (Dodd/Hertzberg) • worse than FCC Small Cell Order • makes all poles available for small cells • at rates below actual cost • with less time than FCC shot clock • already passed in Senate; some version likely to pass SB 378 (Gonzales/Herzberg/Wiener) • by-right micro trenching for conduits only AB 537 (Quirk) • allows construction if permits deemed approved under AB57 AB 1166 (Grayson) • remedies similar to AB 537 but includes new sites, collocations and 6409 applications ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 117 of 252
Questions? Robert C. May Ill Managing Partner Telecom Law Firm, PC 3570 Camino del Rio N., Ste. 102 San Diego, CA 92108 (619) 272-6200 tripp@telecomlawfirm.com practice focused on representing public agencies and other landowners in telecom infrastructure regulations and transactions represents the League of California Cities, League of Oregon Cities, League of Arizona Cities and Towns and dozens more public agencies before the FCC and federal courts represents 100+ public agencies in telecom regulation, permitting, leasing, construction and litigation matters JD, University of San Diego School of Law Executive Editor, San Diego Law Review Executive Board, Moot Court ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 118 of 252
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 wireline communicationsground-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.
The following Review and Operation Guidelines have been developed to supplement and clarify the
requirements of Carlsbad Municipal and Zoning codes, including chapter 21.42 of the Carlsbad Zoning
Code. These requirements are meant to provide a general overview of the procedures and requirements
for installation of WCFs, while accommodating and supporting deployment of WCFs to provide adequate
coverage and capacity throughout the city. They also outline definitions that are quantifiable and
measurable and detail development standards and design requirements which the city will use to review
proposed facilities.
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.
•Protect the health, safety, and welfare of the public to the extent permitted by applicable
laws.
•Are encouraged to locate away from residential and other sensitive areas, except as
allowed by Sections A, B and C. 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.
Policy No. 64
Date Issued: 9/26/2017
Effective Date: 12/14/2021
9/26/2017
Resolution No. 2017-189
Cancellation Date:
Supersedes No. 64 04/10/12
Exhibit 3
{city of
Carlsbad
Dec. 14, 2021 Item #16 Page 119 of 252
• 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.
The Guidelines shall not relieve a person from the responsibility of complying with all other applicable
regulations of any other local, state, or federal agencies. These Guidelines supplement existing
regulations and provide clear standards and guidelines for all wireless infrastructure deployments unless
specifically prohibited by applicable law. The standards and procedures contained in these Guidelines
are intended to, and should be applied to, protect and promote public health, safety and welfare, and
balance the benefits that flow from robust, advanced wireless services with the city’s local
values. Except as expressly provided otherwise, these Guidelines shall be applicable to all applications
and requests for authorization to construct, install, attach, operate, collocate, modify, reconstruct,
replace, relocate or otherwise deploy WCFs, inclusive of applications which affect existing facilities.
These Guidelines are also intended to establish clear procedures for application intake and
completeness review. Conditional use permit applications for WCFs that were denied shall follow the
process in Carlsbad Municipal Code Section 21.54.130 for reapplication of a new CUPconditional use
permit. Building permit and ROWright of way permit applications for facilities that were denied may be
submitted to the Community Development Department as new applications at any time, without
prejudice. SaidSuch a new application will be processed as a completely separate application, with new
submittal materials and fees required, and shall demonstrate compliance with these Guidelines.
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 communicationWCF 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.
A “functionally equivalent provider” means a competitor.
• 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. According to the FCC’s recent order in 2018, theThe denial of a single permit application
Dec. 14, 2021 Item #16 Page 120 of 252
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 “materially inhibits or limits the
ability of any competitor or potential competitor to compete in a fair and balanced legal and
regulatory environment.” Accelerating Wireless Broadband Deployment by Removing Barriers to
Infrastructure Investment, Declaratory Ruling and Third Report and Order, WT Docket No. 17-79,
WC Docket No. 17-84, 33 FCC Rcd. 9088 at ¶ 37 (2018) (Small Cell Order). In addition, local
aesthetic requirements may be prohibitory unless they are reasonable and published in advance.
Small Cell Order at ¶ 40, rev’d in part, City of Portland v. United States, 969 F.3d 1020 (9thNinth
Circuit,. 2020).
• 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.
• Failure to approve or deny applications may result in automatic approvals and court orders.
Under California Government Code 65964.1, an application for a wireless facility may be “deemed
approved” if a city or county fails to act within the presumptively reasonable timeframes
established by the FCC. This provision contains some exceptions but generally applies to new
facilities and very large modifications to existing facilities both on private property and in the
public rights-of-way. The FCC’s regulations contain a similar “deemed granted” remedy for less-
than substantial collocations and modifications to existing facilities. In addition, the Small Cell
Order establishes that a permitting agency’s failure to act within the referenced timeframes will
amount to a presumptive prohibition on the provision of personal wireless services, the remedy
for which may be a court injunction.
• 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 (Section 6409(a) non-substantial modifications).
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.
• 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:
Dec. 14, 2021 Item #16 Page 121 of 252
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 routine having to demonstrate
compliance demonstrations underwith FCC guidelines, however, because their low power generation or
height above ground level is highly unlikely to cause exposures that exceed the guidelines in areas
accessible by people.
PERMIT PROCESSREVIEW AND APPROVAL GUIDELINES:
Wireless communication facilities (WCFs) are defined in Carlsbad Municipal Code Section 21.04.379.
Carlsbad Municipal Code Section 21.42.140(B)(165) allows WCFs in all zones with the approval of a minor
conditional use permit (MCUP) or 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. New WCFs are allowed in the public right-of-way of roads (ROW) subject
to the requirements of this policy and the processing requirements of Table A below.
Small wireless facilities (SWFs) are WCFs that also meet the definition in FCC regulations at 47 C.F.R. §§
1.6002(l).
For WCFs and SWFs to be located in the public right-of-way of roads, which generally is not zoned, a
right-of-way permit pursuant to Title 11 of the Carlsbad Municipal Code may be used as outlined in
Table A – WCF and SWF Processing Requirements.the following permitting requirements apply:
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;
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;
Dec. 14, 2021 Item #16 Page 122 of 252
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.
Dec. 14, 2021 Item #16 Page 123 of 252
TheTable A – WCF and SWF Processing Requirements
Category Code reference/
definition
Application Review
Process
Coastal Zone and
Coastal
Development
Permit (CDP)
requirements
Applicable
Policy 64
Guidelines
New WCFs on
public or
private
property
Carlsbad
Municipal Code
(CMC) Section
21.04.379
CUP or Minor CUP 1 CDP or Minor CDP
required per CMC
Chap. 21.201
unless specifically
exempted
A, B, D, and E
New WCFs in
the public
right-of-way of
roads
CMC Section
21.04.379
ROW permit2, Minor
CUP3 or CUP4
Exempt per CMC
Section
21.201.B.115
A, B, D and E
Existing WCF –
Section 6409(a)
eligible
facilities
request
CMC Section
21.04.379 and 47
U.S.C. § 1455(a)
Section 6409(a)
worksheets
Exempt per CMC
Section
21.201.B.115
N/A – Policy
64 does not
apply
Existing WCF –
Emergency
Generators
CMC Section
21.04.379 and
Government Code
Section 65850.75
Building Permit Exempt per CMC
Section
21.201.B.115
N/A – Policy
64 does not
apply
Small Wireless
Facilities (SWF)
CMC Section
21.04.379 and the
definition in FCC
regulations at 47
C.F.R. § 1.6002(l)
Within the
public right-
of-way of
roads:
Right-of-
way
Permit
Exempt per CMC
Section
21.201.B.115
C, D, and E
Outside the
public right-
of-way of
roads:
MCUP Minor CDP
required per CMC
Chap. 21.201
unless specifically
exempted5
B, C, D, and E
Notes:
1. These guidelines apply in the review of CUPs or Minor CUPs for new WCFs.
2. 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
3. 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
4. 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
Dec. 14, 2021 Item #16 Page 124 of 252
5.When located within the city’s jurisdiction of the Coastal Zone.
REVIEW AND APPROVAL GUIDELINES
A.Location Guidelines fFor Placement of WCFs (excluding SWFs)
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 that alternatives in more-preferred locations are not
technically feasible or potentially availableno feasible alternative exists as required by
Application and Review Guideline E.13.
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
Dec. 14, 2021 Item #16 Page 125 of 252
must approve collocation applications unless the expansion adds significantly to the
height or width of a facility.
5. Monopoles – No new ground-mounted WCF 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.4.
B. Design Guidelines for WCFs and SWFs Outside the Public Right-Of-Way of Roads
1. Stealth Design – All aspects of a WCFs and SWFs, 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, textures and
materials), elements replicating natural features (e.g., trees and rocks), landscaping, and
other creative means to hide or disguise WCFsthe facilities. 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 or extensions to existing structures 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 facilities should adhere to the existing height limitations of the zone in which
they are located. When installed on an existing structure, new facilities and collocations
should not exceed the height of the existing/replacement structure on which they are
being installed.
5. Setbacks – WCFs and SWFs, 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 bea set back should be
maintained 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 bea set back should be maintained 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 Commissiondecision-maker for WCFs 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 and SWFs: –
Dec. 14, 2021 Item #16 Page 126 of 252
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 and SWFs 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.
7. Ground-mounted Monopole WCFs –:
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. Pole mounted SWFs shall comply with the Design Guidelines in section C.2 of this policy
as applicable, including height limits.
8.9. Lattice Towers – New lattice towers should not be permitted in the city. On existing lattice
towers:
a. New lattice towers should not be permitted in the city.
a. On existing lattice towers, All antennas should be mounted as close as possible to
the tower so they are less noticeable, and should match the color of the tower.
b. Wiring must be concealed in conduit that is flush-mounted to the tower. The
conduit and mounting hardware shall match the color of the tower.
b.c. Non-antenna equipment mounted on the tower should be placed behind the
antennas to conceal them from view, and should be enclosed in a cabinet that
matches the color and finish of the structures on which they are mounted.
Ground mounted equipment shall comply with B.2 above.
9.10. Undergrounding – All utilities should be placed underground.
10.11. Regulatory Compliance – WCFs should comply with all FCC, FAA (Federal Aviation
Administration), CPUC (California Public Utilities Commission) and local zoning and
building code requirements.
C. Design Guidelines for WCFs and SWFs in the Public Right-of-Way of Roads
Dec. 14, 2021 Item #16 Page 127 of 252
The general intent of these design and development standards is to preserve the character of the city’s
neighborhoods and corridors by requiring WCFs and SWFs to utilize the least intrusive design available
with regard to appearance, size, and location, and to blend into the existing streetscape as much as
possible. They also seek to prevent conflict with existing and planned roadway, utility, and storm drain
improvements.
1. Support pole installation preferences for the right-of-way of roads
a. The city prefers small wireless facilitiesWCFs and SWFs to be installed on support
poles in the public rights-of- way of roads, ordered from most preferred to least
preferred, as follows:
(1) Existing or replacement streetlight poles.
(2) Existing or replacement wood utility poles.
(3) Existing or replacement traffic signal poles.
(4) New, non-replacement streetlight poles.
(5) New, non-replacement poles (not wood).
b. The city prohibits WCFs and SWFs facilities to be installed on the following
support poles or structures:
(1) Signs.
(2) Any utility pole scheduled for removal or relocation within 12 months
from the time the approval authority acts on the small wireless facility
application.
(3) New, non-replacement wood poles.
(4) Pieces of public art, structures placed in the in the right-of-way through
charitable donations, commemorative memorial structures or archways
over roads and pedestrian walkways, or other similar structures as
determined by the engineering manager.
c. The engineering manager shall determine whether an application for a WCF or
SWF utilizes the least intrusive design available or if there is a more preferred
support pole type within 500 feet of the proposed location. For purposes of these
guidelines, least intrusive design available means the most preferred design or
development standard as provided in these Guidelines that is technically feasible.
For individual antennas, shrouds/radomes, accessory equipment, mounting
brackets/attachments and any other physical aspect of a facility, the city strongly
prefers the smallest such item that is technically feasible. If the application does
not propose the least intrusive design, or if there is a more preferred support pole
within 500 feet, the application shall provide written evidence of the following:
(1) A clearly defined technical service objective
(1)(2) A technical analysis that includes the factual reasons why the least
intrusive design or a more preferred support pole type within 500 feet of
the proposed location is not technically feasible.
1.2. WCFs on Existing and Replacement PolesRequirements applicable to all WCFs and SWFs
in the public right-of-way of roads
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.
Dec. 14, 2021 Item #16 Page 128 of 252
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.
a. Overall height. WCFs and SWFs mounted to existing poles shall not exceed the
height of a support pole by more than five feet measured from the top of the
pole, except as necessary to comply with CPUC General Order 95 relating to utility
poles. Replacement poles and new non-replacement poles shall not exceed the
city height standards for streetlight poles or traffic signal poles, as applicable, by
more than ten percent, plus five feet for the antenna. Replacement utility poles
shall not exceed ten percent of the height of the existing utility pole, plus five feet
for the antenna.
b. Antenna stealth/concealment. The antenna(s) associated with the installation
shall be stealth to the maximum extent feasible and concealed with a radome(s),
shroud(s) or other cover(s) that also conceals the cable connections, antenna
mount, and other hardware. The radome, shroud or other cover must be a flat,
non-reflective color to match the underlying support structure.
c. Antenna size.
(1) Each antenna shall not exceed 3 cubic feet in volume. Mounting arms,
hardware, and concealment elements are included in the antenna volume
limits.
(2) Top-mount antennas (including the shroud) shall be no more than 16
inches wide when placed on light poles, and shall not exceed the width of any
wooden utility pole on which they are mounted.
(3) Any top-mounted antennas which are wider than the light pole on which
they are mounted shall be tapered to match the width of the pole at the point
of attachment to the pole.
d. Equipment location. Accessory equipment may be both pole mounted and non-
pole mounted. Pole mounted limits are described in Section C.2.e , the balance
located according to the following preference: (1) underground, (2) above ground
and screened consistent with Section C.2.f. The city’s preferences is for non-pole
mounted equipment to be placed underground to the extent possible, unless the
applicant demonstrates that it is technically infeasible or there are conflicts with
other utilities, obstructions or it is otherwise not feasible, as determined by the
engineering manager. If undergrounding is not feasible, the city prefers the
equipment to be pole-mounted.
e. Pole mounted equipment.
(1) Design and stealth/concealment. Accessory equipment must be stealth
to the maximum extent feasible and/or concealed within a cabinet or
shroud, and should be flush mounted and centered on the pole, except
to the extent necessary to comply with CPUC General Order 95 for wood
utility poles. The installation should be designed to minimize the overall
visual profile, and installations that are partially or completely wrapped
around the pole are encouraged. All equipment cabinets or shrouds shall
be painted to match the color of the surface of the pole on which they
are attached to reduce their visibility. Equipment may be installed behind
street, traffic or other signs (between the pole and sign) to the extent
Dec. 14, 2021 Item #16 Page 129 of 252
that the installation complies with applicable regulations. All cables and
conduits associated with the equipment shall be concealed from view
within the same shroud or other cover and routed directly through the
pole when feasible. Microwave or other wireless backhaul shall not have
a separate and unconcealed antenna.
(2) Size limits. All non-antenna equipment mounted to the pole is included
in the equipment volume limit. Electric meters and disconnect switches
that are mounted on the pole are not included in the equipment volume
limit. All pole mounted non-antenna equipment, including cabinets, shall
not exceed:
(a). A width of 24 inches; and
(b). Nine (9) cubic feet in volume if installed within or adjacent to a
residential district or within 500 feet from any structure
approved for a residential use; or
(c). Seventeen (17) cubic feet in volume if installed within or adjacent
to a non-residential district.
f. Ground mounted equipment. If underground equipment is not feasible because
there are conflicts with other utilities, obstructions or it is otherwise not
technically feasible, as determined by the engineering manage per section (d)
above, then all above ground equipment shall be: (1) placed in a ground-mounted
equipment shroud or cabinet that contains all equipment associated with the
small wireless facility 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. All ground mounted equipment shall be stealth and/or
screened completely, unless it is disguised to the satisfaction of the engineering
manager. Volume limits for ground-mounted equipment shall be the same as
applicable to pole-mounted equipment. The engineering manager may elect to
waive volumetric limits for equipment that is installed or placed underground.
g. All equipment associated with the WCF or SWF shall be located so as to avoid
impacts to pedestrian access and vehicular site distance and safety. Pole
mounted equipment should be mounted a minimum of eight feet above grade.
h. To reduce clutter and deter vandalism, excess fiber optic or coaxial cables shall
not be spooled, coiled, or otherwise stored on the pole unless concealed within
a cabinet.
i. If the proposed WCF or SWF would damage or displace any street trees or trees
on public property, the applicant shall comply with CMC Chapter 11.12 and City
Council Policy No. 4 and will be responsible for planting replacement trees to the
satisfaction of the Parks & Recreation Director or designee.
j. If an applicant proposes to replace a streetlight pole, the replacement pole should
be substantially similar to the existing pole and comply with city standards and
specifications for streetlight poles.
2.3. WCFs Supplemental requirements for WCFs and SWFs on New Poles for the right-of-way of
roads
a. All WCFs on new poles require a CUP by Process 2.
Dec. 14, 2021 Item #16 Page 130 of 252
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.
b. 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 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:
i. A minimum of 50-feet from the extension of the curb of the intersecting street at
intersections. Distances of less than 50-feet may be allowed through approval
of the city engineer and the city traffic engineer(1) 50 feet from any intersection;
ii. (2) six Six feet from any driveway cut or alley entrance or exit;
i.iii. (3) and six 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.
c. 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.
d. The city may require the applicant to install a stealth pole, which may include without
limitation 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.
e. 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.The city
will consider new pole designs proposed by an applicant if they meet the intent of this
policy for stealth and attractive designs that adequately conceal equipment, as
determined by the engineering manager. If a new pole without a streetlight is proposed,
antennas and all equipment not installed underground must be concealed and integrated
into the overall design of the pole, no exterior equipment boxes or shrouds attached to
the pole will be permitted.
4. Areas with decorative streetlight poles.
a. Replacement poles and new non-replacement poles installed within the following
areas shall be substantially similar in color, style and design to the existing
decorative streetlights, as determined by the engineering manager in
consultation with the city planner. Poles in each area shall use a single consistent
design theme to maintain the existing character established by existing
streetlights:
(1) Carlsbad Village
(2) Villages of La Costa Master Plan
(3) Bressi Ranch Master Plan
(4) La Costa Master Plan (MP 149)
(5) Various roads including El Camino Real and Aviara Parkway that utilize
the mission bell streetlight design
Dec. 14, 2021 Item #16 Page 131 of 252
(6) Any other areas as determined by the city planner or engineering
manager
5. Supplemental requirements for WCFs and SWFs on existing wood utility poles.
a. All antennas must be installed within a radome, shroud or other cover mounted
to the pole at the top, side, or on a stand-off bracket or extension arm that is
attached to the pole. The city’s preference is for side-mounted antennas located
in the communications space below the electric lines.1
b. All cables, wires and other connectors must be concealed within the antenna
shroud, stand-off bracket/extension arm and conduit that is flush-mounted to the
pole to the maximum extent feasible and of the smallest diameter and shortest
length necessary to serve the facility. No loose, exposed, or dangling wiring or
cables shall be allowed.
c. All shrouds, conduit or other items stealth/concealing antennas, equipment and
wires shall be painted to match the color of the pole.
a.
3. Design Guidelines Applicable to WCFs on Existing and New Poles
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.
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.
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.
All equipment associated with the WCF shall be located so as to minimize impacts to pedestrian
access and vehicular site distance and safety.
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.
b.d. 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.
D. Performance Guidelines
1 Strand-mount antennas are also considered a preferred installation type.
Dec. 14, 2021 Item #16 Page 132 of 252
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 laws and FCC RF Exposure Guidelines – The permittee shall maintain
compliance at all times with all federal, state and local statutes, regulations, orders or
other rules that carry the force of law (“laws”) applicable to the permittee, the subject
property, the WCR, SWF or other infrastructure deployment or any use or activities in
connection with the use authorized by a required permit, which includes without
limitation any laws applicable to human exposure to RF emissions and any standards,
specifications or other requirements identified by the city planner or engineering
manager (such as, without limitation, those requirements affixed to a required permit). If
the city planner or engineering manager finds good cause to believe that the facility is not
in compliance with any laws applicable to human exposure to RF emissions, the city
planner or engineering manager may require the permittee to submit a written report
certified by a qualified radio frequency engineer familiar with the facility that certifies
that the facility is in compliance with all such laws. The city planner or engineering
manager may order the facility to be powered down if, based on objective evidence, the
city planner or engineering manager finds that the facility is in fact not in compliance with
any laws applicable to human exposure to RF emissions until such time that the permittee
demonstrates actual compliance with such laws. The permittee expressly acknowledges
and agrees that this obligation is intended to be broadly construed and that no other
specific requirements in these conditions are intended to reduce, relieve or otherwise
lessen the permittee’s obligations to maintain compliance with all laws. No failure or
omission by the City to timely notice, prompt or enforce compliance with any applicable
provision in the Carlsbad Municipal Code, this Policy, any permit, any permit condition or
any applicable law or regulation, shall be deemed to relieve, waive or lessen the
permittee’s obligation to comply in all respects with all applicable provisions in the
Carlsbad Municipal Code, this Policy, any permit, any permit condition or any applicable
law or regulation. 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
Plannereither verification that the WCF is categorically excluded from having to
Dec. 14, 2021 Item #16 Page 133 of 252
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 of antennas and equipment- Any WCF or SWF 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 facility owner
must remove the facility and restore the site, as much as is reasonable and practical, to
its prior condition. If such WCF facility is not removed within the 90 days, the WCF facility
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. Application requirements for WCFs. BesidesIn addition to the typical submittal
requirements for a CUP or Minor CUP (see Planning Division Form P-2), right-of-way
permit or building permit (including plans, landscape details, and color and material
samples, as appropriate), all WCF applications should shall include the following items:
a. A description of the site selection process undertaken for the WCF proposed.
Coverage Technical service 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. The
applicant shall submit an RF exposure compliance report that certifies that the
proposed facility, both individually and cumulatively as applicable under 47 C.F.R.
§ 1.1307(b)(5)with all other emitters in the vicinity, will comply with applicable
federal RF exposure standards and exposure limits.
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 or Eengineering Mmanager may waive the
requirement to provide the exhibits if he/she determines they are unnecessary.
e.f. Provide confirmation that an environmental assessment, or other application
determination, has been completed by or on behalf of the FCC for any facility
Dec. 14, 2021 Item #16 Page 134 of 252
proposed in a location identified in 47 C.F.R. 1.307 (including a floodplain) or as
otherwise required by National Environmental Policy Act or the National Historic
Preservation Act.
2. Application requirements for SWFs. In addition to the typical submittal requirements
for a right-of-way permit or building permit (including plans, landscape details, and color
and material samples, as appropriate), all SWF applications shall include the following
items:
a. A description of the wireless system proposed (e.g., cellular, PCS, etc.) and its
consumer features (e.g., voice, video, and data transmissions).
b. For new poles that are least preferred, a description of the site selection process
undertaken for the proposed SWF. A technical service objective and the reasons
for selecting the proposed site and rejecting other sites should be provided.
c. Verification that the proposed SWF 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). The applicant shall submit an RF exposure compliance report that
certifies that the proposed facility, both individually and cumulatively as
applicable under 47 C.F.R. § 1.1307(b)(5)with all other emitters in the vicinity, will
comply with applicable federal RF exposure standards and exposure limits.
d. 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 or engineering manager may waive the requirement
to provide the exhibits if he/she determines they are unnecessary.
e. Environmental impact assessment form to determine whether the proposed
project is categorically exempt under Article 19 of the CEQA Guidelines, or
whether the proposed project will require a Negative Declaration, Mitigated
Negative Declaration or an Environmental Impact Report. In addition, provide
confirmation that an environmental assessment, or other application
determination, has been completed by or on behalf of the FCC for any facility
proposed in a location identified in 47 C.F.R. 1.307 (including a floodplain) or as
otherwise required by National Environmental Policy Act or the National Historic
Preservation Act.
2.3. For WCFs proposed in a zone or area that is a discouraged WCF location as listed in
Location Guideline A.2., the applicant should shall provide evidence that no location in a
preferred zone or area as listed in Location Guideline A.1. is technically feasible or
potentially available to 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.
3.4. For proposed new ground-mounted monopole WCFs, the applicant should shall 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.
Dec. 14, 2021 Item #16 Page 135 of 252
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
Plannercity planner) satisfaction that there are other limiting factors that render
an existing facility unsuitable.
4.5. In approving a WCF or SWF, the decision-maker (Planning Commission, city planner or
engineering manager) shall make the findings in Carlsbad Municipal Code Section
21.42.020 if applicable, and shall give consideration to 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.
5.6. Conditional Use Permits (CUPs)/Minor CUPs 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 or Minor CUP, the WCF should will 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 will review the appropriateness of the existing
facility’s design, and that the applicant should be required to documented 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.
6.7. Collocation for WCFs. Pursuant to California Government Code Section 65850.6,
qualifying collocation facilities for WCFs shall not be approved with a conditional use
permit or conditional use permit amendment. This section does not apply to SWFs.For
the purposes of collocation, the following definitions apply:
a. For the purposes of collocation, the following definitions apply:
(1) “Collocation facility” means the placement or installation of WCFs,
including antennas, and related equipment, on or immediately adjacent to, a
wireless telecommunications collocation facility.
Dec. 14, 2021 Item #16 Page 136 of 252
(2) “Wireless telecommunications facility” means equipment and network
emergency power systems that are integral to providing wireless
telecommunications services.
(3) “Wireless telecommunications collocation facility” or “WTCF” means a
wireless telecommunications facility that includes Collocation facilities.
b. A building permit conditional use permit shall not be required for a proposed WCF
Collocation facility which will be placed on a previously approved WTCF provided
that:
(1) The new WCF Collocation facility is consistent with requirements for the
existing WTCF installation; and
(2) The modification of an existing wireless tower or base station does not
physically change the dimensions of such tower or base station.
c. 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.
d. 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.
8. Applications from a single provider of wireless communication services for up to 10 SWF
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. Batched
applications will only be accepted prior to 4:00pm Monday through Thursday.
9. Applications must be submitted in-person and with an appointment. Application
materials delivered by U.S. mail or other delivery service will not be processed and do not
constitute a submitted and duly filed application. An application is not considered duly
filed and submitted unless it is provided in-person to a representative of the Community
Development Department and assigned a case number or permit number as appropriate.
10. SWFs that propose to use an existing pole, replacement pole or other existing structure
shall be required to provide authorization from the pole or structure owner.
Authorization may include signatures, letters, agreements or other similar methods
acceptable to the city planner or engineering manager. Authorization from the owner in
connection with joint utility poles may be evidenced by documentation that shows that
authorization has been granted in accordance with the joint pole committee’s rules,
which may include authorization deemed granted by lapse of time.
11. Exceptions to this policy. The city may grant an exception to the requirements of this
policy but only to the extent necessary to avoid conflict with applicable federal or state
law. When the applicant requests an exception, the approval authority shall consider the
findings in subsection (a) of this section. Each exception is specific to the facts and
circumstances in connection with each application. An exception granted in one instance
shall not be deemed to create a presumption or expectation that an exception will be
granted in any other instance.
Dec. 14, 2021 Item #16 Page 137 of 252
a. The decision maker may grant an exception to any provision or requirement in
this policy only if the decision maker finds that:
(1) A denial based on the application’s noncompliance with a specific
provision or requirement would violate federal law, state law or both; or
(2) A provision in this policy, as applied to the applicant, would violate any
rights or privileges conferred on the applicant by federal or state law.
b. If the decision maker finds that an exception should be granted, the exception
shall be narrowly tailored so that the exception deviates from this policy to least
extent necessary for compliance with federal or state law.
c. The applicant shall have the burden to prove to the decision maker that an
exception should be granted pursuant to this section. The standard of evidence
shall be the same as required by applicable federal or state law for the issue raised
in the applicant’s request for an exception.
12. Pre-Application Meetings. Federal laws and policies establish time limitations (referred
to as a “shot clock”) related to processing of all types of WCFs and SWFs permits. The city
is required to act on a WCF or SWF permit within the established shot clock timeframes.
Pre-application meetings are strongly encouraged in order to ensure that proposed
facilities comply with the requirements of these Guidelines and that application materials
include adequate and accurate information. A pre-application meeting is voluntary and
is intended to streamline the review process through informal discussion between the
potential applicant and staff that includes, without limitation, the appropriate project
classification and review process; any latent issues in connection with the proposed
project, including compliance with generally applicable rules for public health and safety;
potential concealment issues or concerns (if applicable); coordination with other city
departments responsible for application review; and any foreseen application
completeness issues.
13. Pre-approved designs. To expedite the review process, encourage collaborative designs
among applicants and the city, and ensure cohesive and high-quality designs for new or
replacement poles in areas such as those with decorative streetlights, the engineering
manager in consultation with the city planner, may designate one or more pre-approved
designs for small wireless facilities and other infrastructure deployments.
a. Any applicant may propose a design for consideration as a pre-approved design.
The city may, in its discretion, establish a pre-approved design when the proposed
pre-approved design exceeds the design guidelines in this policy.
b. The city may modify or repeal any pre-approved design by written notice to any
applicants who have used the pre-approved design, and by posting the notice at
the Land Use Engineering counter. The modification or repeal shall be effective
immediately.
c. Any applicant may propose to use any pre-approved design whether the
applicant initially requested that the city adopt such pre-approved design or not.
The city’s decision to adopt a preapproved design expresses no preference or
requirement that applicants use the specific vendor or manufacturer that
fabricated the design depicted in the pre-approved plans. Any other vendor or
manufacturer that fabricates a facility to the standards and specifications in the
pre-approved design with like materials, finishes and overall quality shall be
acceptable as a pre-approved design.
Dec. 14, 2021 Item #16 Page 138 of 252
14. A master license agreement or other authorization is required prior to permit submittals
for WCF or SWF installations that will locate on city-owned property or facilities.
15. At the time of filing the application, the applicant shall pay all applicable fees contained
in the most recent fee schedule adopted by the city council.
16. An applicant may voluntarily elect to defer submittal of any permit or agreement which
is otherwise required as part of a whole application. The voluntary deferral of any such
permit or agreement shall toll the shot clock on that item. Once the voluntarily deferred
item is received, the city will provide comments on any deferred submittal in the same
manner as if it was a new application. The city will continue to process all other permits
and agreements that are not deferred.
SEVERABILITY:
If any sections, subsections, sentence, clause, or phrase of the policy is for any reason held to be invalid
or unconstitutional by the decision or legislation of any court of competent jurisdiction, or by reason of
preemptive legislation, such decision or legislation shall not affect the validity of the remaining portions
of the policy. The City Council declares that it would have approved this policy, and each section,
subsection, sentence, clause and phrase thereof, irrespective of the fact that one or more of the sections,
subsections, sentences, clauses, or phrases thereof is declared invalid or unconstitutional.
These Guidelines have been adopted, and may be amended, by resolution of the City Council.
Revisions to address clerical errors may be made administratively by the Director of Community
Development.
Dec. 14, 2021 Item #16 Page 139 of 252
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Dec. 14, 2021 Item #16 Page 140 of 252
# Topic Option Staff Analysis and Recommendation
1 Collocation Allow SWF collocations for
up to two facilities on one
support pole.
Allowing collocations
would maximize usage of
existing poles and minimize
the number of new poles,
which could be an aesthetic
benefit in the sense of less
new poles in the ROW.
Staff recommendation is neutral for this option.
As an aesthetic matter, multiple SWFs on a single
streetlight or utility pole can get messy as there are
only so many places you can put or hide boxes and
antennas on a 30-foot pole. Also, as a practical
matter, carriers prefer not to share poles for SWFs.
Once a pole is occupied by one provider, it is
unlikely another one would want to share.
The most common approach is the one currently
drafted in this policy: favoring collocation with
large facilities on private property and disfavoring
collocations of multiple SWFs on a single pole,
primarily for aesthetic reasons.
2 Pole type
preference
Simplify pole type
preference list in C.1.a to
the following – existing vs.
new poles and establish a
preference for existing
poles.
Staff does not recommend this option. The revised
preference list accomplishes what is suggested by
this option. The proposed preference list
establishes a preference for existing traffic lights
below existing streetlights and utility poles, which
can potentially limit installations on traffic lights
when feasible.
3 Technical
experts or
consultants
Reserve the option to hire
outside experts or
consultants to review
application materials,
including RF reports, to
verify accuracy and
compliance with local and
FCC requirements
Staff recommends this option. Staff may not have
the expertise or capacity to adequately review all
technical aspects of an application, and if
application volumes increase, workload capacity
could be a problem. If this option is selected, staff
could bring back a proposal for City Council
consideration.
Exhibit 4
Dec. 14, 2021 Item #16 Page 141 of 252
# Topic Option Staff Analysis and Recommendation
4
Placement in
residential areas
Apply the location
preferences in Section A to
SWFs.
Some public comments requested a prohibition on
SWFs in the ROW adjacent to a residential front
yard setback. Staff does not recommend this as it
would likely result in a prohibition of service. A
better option would to apply the location
preferences in Section A to SWFs as described
below.
Staff recommendation is neutral for this option.
The location preferences in Section A express the
City’s aesthetic values in preserving residential
neighborhood character. The preferences also take
into consideration the limitations on local authority
under federal law because cities cannot prohibit or
effectively prohibit the provision of personal
wireless or telecommunications services. Setback
requirements or prohibitions are more likely to be
unenforceable and/or cause the City to violate
federal law. Applying the location preferences in
Section A would strike a more appropriate balance
between complying with law and preserving the
residential character of the City’s neighborhoods.
If this option is selected, applicants may be
required to demonstrate that alternatives in more-
preferred locations are not technically feasible or
potentially available, and through this method they
could locate in a non-preferred residential ROW.
In addition, to the extent that any regulation is not
technically feasible, the applicant may seek an
exception under Section E.11
6 Annual Reports Require carriers submit
annual reports to the city
on all facilities within the
city and current status.
Staff recommends this option. Reporting
requirements have been included in other
jurisdictions. The annual report could ask for
verification that facilities are within FCC limits.
The following language could be added to Policy 64:
“Prior to July 1 of each calendar year, each Small
Wireless Facility provider should provide
documentation identifying the location of each
facility in the right-of-way within the city; including
those approved but not built.”
Dec. 14, 2021 Item #16 Page 142 of 252
# Topic Option Staff Analysis and Recommendation
7 Noticing
Requirements
Add noticing requirement
as part of an application for
a Small Wireless Facility
Staff recommends adding as a requirement on cell
providers to provide notice. However, any notice
will still be subject to the updated Policy 64
requirements allowing construction of the facilities
consistent with FCC regulations. “Any application
for a new or co-located SWF shall include evidence
of compliance with the following notice
requirements, a notice of intent to request a permit
for a new SWF shall be provided to all property
owners within 300 feet of the proposed facility.”
8 Change distance
required for
evaluation of
other poles
The draft policy includes a
requirement that
applications consider other
more preferred pole types
within 500 feet of the
proposed location. During
public review, one
comment recommended
that this be modified to
200 feet.
Staff recommendation is neutral. Small Wireless
Facilities provide service to smaller areas and are
often used to fill capacity needs rather than provide
broad coverage.
9 Insurance and
indemnification
The City could consider
adopting additional
insurance and
indemnification
requirements for applicants
not subject to a master
license agreement (MLA).
Staff recommends this option. The city requires
insurance and indemnification as part of it’s MLA
for wireless communication facilities located on city
owned facilities, such as a streetlight or traffic sign.
Facilities installed on electric utility poles or on new
poles that the City does not own would not be
protected under the MLA. The City may wish to
consider adopting insurance and indemnification
requirements in the Policy to fill this gap.
Dec. 14, 2021 Item #16 Page 143 of 252
Ref
#
Policy 64
Section #
Comment Response
V1 C(1)(a) Support pole preferences. If strictly applied, the top
preferences for City-owned streetlight and traffic signal poles
would contradict California Government Code Section
65964(c) which bars local governments from limiting wireless
facilities to sites owned by particular parties. Small cell
equipment is not “out-of-character” on utility poles, and
structure preferences used to deny this option would be
unreasonable under the FCC's Small Cells Order. To give utility
poles equal footing, the preferences should simply favor
existing/replacement poles over new poles.
There are many areas of Carlsbad where streetlights are
mounted to utility poles and there are no existing stand-
alone streetlights that can be utilized. The pole type
preference list in Section C.1.a was modified so that
existing wooden utility poles are preferred over installing
new streetlight poles. This allows utility poles to be the
most preferred pole type in these areas of Carlsbad.
An option for City Council consideration is added to
Exhibit 5 that would simplify the pole type preference in
C.1.a to prefer existing poles to new poles.
The city disagrees that the existing preferences could
contradict Gov. Code Section 65964(c) as the pole types
only establish preferences and applicants are not limited
to installations on city owned support poles.
V2 C(1)(c) Review radius for preferred poles. Pursuant to the above
comment, there should be no need to review alternatives
within 500 feet if an applicant is using an existing/replacement
pole. For new poles, we suggest adding an objective scope of
review, allowing new poles if there is no existing pole within
200 feet along the subject right-of-way that is available and
technically feasible to support a small cell. The City should
not require "technical service objective" and related maps as
feasibility factors, as the FCC has confirmed that small cells are
needed to enhance services and to densify networks.
Proposed Section C.1.c establishes a preference list for
the types of support poles and requires an applicant to
provide justification if a less preferred pole is chosen
within 500 ft of a more preferred pole. Given that the
small cell range is 400-500 ft., staff believes the 500 ft.
distance is appropriate and that this requirement should
be kept.
The requirement for a map is deleted from the draft
policy. However, the requirement to justify the use of a
less preferred pole type is kept in the draft, and a
technical service objective is needed to support the
justification. Exhibit 5Dec. 14, 2021 Item #16 Page 144 of 252
Ref
#
Policy 64
Section #
Comment Response
V3 C(2)(b) Antennas in a radome/shroud. This is infeasible in two
ways. First, 4G and 5G antennas must be vertically separated
to avoid interference, rendering a single shroud to be
infeasible due to excessive size. Second, in most
circumstances, shrouds or radomes impede frequencies that
Verizon Wireless recently licensed from the FCC for new
wireless technology including 5G service, and such coverings
are infeasible for signal propagation. Any antenna standards
for right-of-way facilities must accommodate new higher-
frequency facilities that integrate antennas and radios in one
small box, and cannot impose shrouding. There should be an
exception if technically infeasible.
The language utilized here that the installation "shall be
concealed with a radome, shroud or other cover..." implies a
single shroud/radome. First, Verizon's millimeter wave
frequency cannot be enclosed within a shroud or radome. We
can utilize a flat, colored film that can conceal the antennas
within a larger "shroud". It has cutouts/windows in the shroud
to allow proper operation. But, to completely enshroud the
antennas would render them inoperable; these frequencies
cannot propagate through such physical barriers. Secondly, in
instances where we may otherwise prefer to use a single pole
with both 4G (in a top-mounted radome) and 5G (in a below-
luminaire shroud with cutouts/filming) on the same pole, we
may not be able to do so, depending on how the above-
quoted language is interpreted by staff (i.e., "a radome,
shroud or other cover" as tantamount to a 'single' such
radome/shroud). The ultimate implication being that we may
need to deploy a larger quantity of poles if we have to limit
any given structure to just one frequency, versus combining
them on one pole.
Proposed Section C.2.b was modified to allow more than
one shroud, radome or other cover as follows:
“Shroud(s), radome(s), other cover(s)”.
The policy’s use of the word “other cover” is flexible
enough to allow for the use of colored films as suggested
by the comment.
Also, the draft proposes an exception for conflicts with
law, which will allow applicants and staff to address
technical feasibility issues.
Dec. 14, 2021 Item #16 Page 145 of 252
Ref
#
Policy 64
Section #
Comment Response
V4 C(2)(c) Antenna cumulative volume limit of six cubic feet. While the
FCC specifies a limit of three cubic feet for each antenna, it
does not limit total volume. 47 C.F.R. § 1.6002(l). This should
be stricken.
Verizon's 5G antennas are antenna/radio integrations; it's all
one unit. It would be helpful here for an allowance for
millimeter wave antennas for the use of the applicable
"accessory equipment" volumetric maximums to be added to
the allowance for antennas alone, when calculating this
volume.
The six cubic foot limit was deleted from the draft.
Collocation for up to two facilities was added as a policy
option for City Council consideration in Exhibit 5.
V5 C(2)(d) Equipment location, preference for underground. This
section is unclear as to whether undergrounding is the top
preference overall, or favored only for equipment not placed
on a pole. Because small pole-mounted equipment is not
"out-of-character" among other right-of-way infrastructure, it
should be allowed up to a certain volume. Draft Policy Section
C(2)(e)(2) includes workable volumes for pole-mounted
associated equipment (nine cubic feet near residential and 17
elsewhere, excluding meters/disconnects). This section
should be clarified to allow those volumes of pole-mounted
associated equipment before any undergrounding or ground-
mounting is considered.
The policy was revised to clarify the city’s intention for a
preference for any equipment not mounted on the pole
to be placed underground.
V6 C(2)(e)(1) Design and concealment. The requirement to flush-mount
equipment is infeasible for electric utility poles. The provision
should be revised to accommodate the standoff distance
required by Public Utilities Commission General Order 95 (four
inches).
An exception to this guideline for conflicts with General
Order 95 for wood utility poles. However, it is noted that
some venders have been installing flush mounted
equipment to utility poles.
V7 C(2)(e)(2) Size limits. Among the dimensions listed, the depth limit of 12
inches is infeasible if it does not accommodate required radio
units for small cells on utility poles that are available from
manufacturers. Because the provision already limits
The depth limit of 12 inches was deleted from the draft in
Section C.2.e.2.
Dec. 14, 2021 Item #16 Page 146 of 252
Ref
#
Policy 64
Section #
Comment Response
equipment volume and width, the depth limit is unnecessary
and should be stricken, or expanded to a feasible dimension
to accommodate required radio units.
V8 C(3)(a),
(b)
New pole setback of 50 feet (or more) from
intersections. Barring new poles within 50 feet of
intersections eliminates many optimal locations where signal
can be directed down multiple streets. Narrow wireless poles
pose no more impact on views than street lights or traffic
signals at corners.
This provision gives me pause, as I am concerned that this
could very likely result in prohibition of service. I understand
the rationale for this; however, in many other jurisdictions,
we've seen a carveout for technical infeasibility that affords
staff the discretion to determine that such restrictions on a
given project would create a situation where the proposed
site's coverage/capacity objectives could not otherwise be
technically feasible without relaxing the restrictions (on an ad
hoc basis). Another consequence of pushing small cells away
from intersections will likely result in a greater quantity
required to meet the same coverage/capacity objectives.
The stated purpose of the setback is to prevent
obstructions at intersections. Changes in the draft were
made to clarify the method of measurement for the 50-
foot setback and add flexibility by allowing modifications
by the Engineering Manager. In addition, the policy
allows SWFs to locate on traffic light poles.
Also, the draft proposes an exception for conflicts with
law, which will allow applicants and staff to address
technical feasibility issues.
V9 C(3)(c) New pole with streetlight or banner. If Verizon Wireless
places and owns a new pole for its equipment, as allowed by
Public Utilities Code Section 7901, the City cannot compel it to
install a streetlight or other non-wireless apparatus without
paying rent. This potential requirement should be
stricken, leaving the following section to control new pole
designs.
Section 7901 preserves local aesthetic regulations. If a
new standalone pole would not be consistent with the
surrounding area, the City may impose aesthetic
conditions on the pole. Adding a streetlight or a banner
could qualify. Edits to that effect were added to the
draft.
V10 C(3)(d) New pole design. The City should work with wireless carriers
to ensure that objective standards accommodate all new pole
designs that fully conceal equipment, not just the base shroud
option.
The intent of the policy is that if an applicant proposes a
new pole, all equipment must be integrated into the
design of the pole. This intent was clarified in the draft,
and authority given to the Engineering Manager to
Dec. 14, 2021 Item #16 Page 147 of 252
Ref
#
Policy 64
Section #
Comment Response
determine if the proposed design complies with the
intent of the policy.
V11 C(5)(a) Antenna in radome/shroud (wood utility pole). Per the
comment on C(2)(b), this may be technically infeasible for
multiple or 5G antennas.
Repeat comment, see V4 above
V12 E(1) Application and review guidelines. This introductory
provision should note the submittal items that are
inapplicable to small cells in the right-of-way: Sections E(2)
(location restrictions), E(4) (use permit findings), and the
following three items:
E(1)(a). Site selection process, technical service
objectives. This submittal requirement should not apply
to small cells. There should be a site selection review only if
an applicant is using a less-preferred structure (that is, a new
pole, per the comments on Sections C(1)(a) and (c)
above). Also, as noted, "technical service objective" is
irrelevant to small cells.
E(1)(b). Description or map of all existing/proposed
sites. This is not relevant to any reasonable, objective
aesthetic criteria for small cells. Each small cell should be
evaluated on its own merits.
There is a compelling argument here that has been advanced
in many other jurisdictions that submission of complete maps
of vital telecommunications infrastructure poses a legitimate
security issue. Subject to public record disclosure, such a
concise outline of network assets at-a-glance exposes our (and
our competitors') architecture to potential impacts of third
parties. We strenuously object to these requests.
Note that E.1 was changed to only apply to WCFs
applications, and E.2 was added and only applies to SWF
applications.
E.1.a – New Section E.2 was added and exempts SWFs on
existing/replacement poles from this application
requirement, and only apply it to new poles that are least
preferred
E.1.b – New Section E.2 does not include a requirement
for an SWF applicant to submit such a map.
E.3 – Now Section E.4, this section of Policy No. 64 won’t
apply to SWFs whether in or out of the ROW, so the
comment is not applicable.
Dec. 14, 2021 Item #16 Page 148 of 252
Ref
#
Policy 64
Section #
Comment Response
E(3). Submittals for new pole. Several of the factors listed to
discount use of existing facilities appear to contemplate
private property sites. However, because Section 7901 grants
telephone corporations use of any right-of-way, the City
cannot require relocation on to private property. This section
should not apply to right-of-way small cells. Instead, the City
should rely on the new pole standard suggested
above regarding Section C(1)(c).
CC1 C(3)a Supplemental requirements for SWFs on New Poles for the
right-of-way of roads
While new poles may not be our first priority, maintaining
these set-backs (50’ set back from any intersection, 6’ from
any driveway cut or alley entrance and 6’ from any existing
permanent object in the ROW) could prove to be greatly
limiting. Safety and line of sight are paramount when dealing
with intersections and a set-backs are necessary, however we
recommend reducing the size of the set-backs to 25’ for
intersections and to 4’ from any existing permanent object in
the ROW. We’ll continue to work with Staff and incorporate
locational preference to the best of our ability in the event a
new pole is needed.
See comment and response for V8
CC2 D(5) Compliance with FCC RF Exposure Guidelines
With RF Reports required at time of submittal
simulating worse case scenarios, an additional report within
(6) months of final inspection is redundant.
A cumulative report encompassing a 500 ft radius for
SWF’s in the ROW is excessive, we request that the City
remove the “cumulative” requirement and reduce the radius
(Ex: Neighboring municipalities have a adopted a 75 ft radius
requirement).
Consistent with FCC rules, the requirement for a post-
installation RF report and the 500 ft. radius for
cumulative RF reports was removed from the policy draft.
In place of the post-installation report, the draft proposes
a new section that requires compliance with laws,
including those pertaining to RF emissions, at all times on
an ongoing basis. This requirement allows the permit
decision maker to ask for additional RF studies at any
time if they have good cause to believe that the facility is
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not in compliance with any laws applicable to human
exposure to RF emissions.
The policy draft requires an applicant shall submit an RF
exposure compliance report that certifies that the
proposed facility, both individually and cumulatively with
all other emitters in the vicinity, will comply with
applicable federal RF exposure standards and exposure
limits.
S1 A1 & 2 Sprint opposes the removal of public right-of-way (ROW) areas
from the list of preferred locations for WCFs, in particular
macro cell towers. It is very important for carriers to have
maximum flexibility for the placement of macro towers in areas
such as public ROWs to ensure high-quality wireless coverage
as broadly as possible. Imposing unnecessary restrictions on
placement of macro cell towers in the public ROW would simply
limit Sprint’s ability to locate facilities where they might be
most needed to provide the desired coverage, and could
interfere with Sprint’s ability to optimize its network
technology for the deployment of 5G.
The draft policy was revised to keep certain ROW areas as
preferred locations for macro WCFs (no change from the
existing policy). SWFs within the ROW are exempted
from the preferred locations in Section A.
S2 B.7 Sprint suggests a definition of “monopole” be added to the
Policy, in order to ensure consistent application of the
guidelines among carriers and infrastructure providers, and to
provide additional clarity to other provisions utilizing the term
“monopole.”
The monopole requirements are part of the existing
policy and only apply to WCFs, not SWFs. Adding
definitions to Policy No. 64 is beyond the scope of this
update. Staff recommends that definitions could be
considered along with other code and policy clean-up
items as part of a separate work effort.
S3 B.1 Sprint suggests the design guidelines in Section B should clarify
that carriers may propose alternative methods of screening to
meet the “stealth” requirements, such as painting, texturizing
walls or buildings, or utilizing fencing.
The policy includes requirements that are intended to be
examples, and the permit decision maker has the
discretion to consider items not stated as similar to the
examples. Staff does not recommend changing the draft
policy.
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S4 B.7 With regard to monopole design, Sprint suggests clarification
of the conditions under which a “plain” monopole is
acceptable, versus when a tree-disguise is required.
This is part of the existing policy and only applies to
WCFs, not SWFs. Updating this is beyond the scope of
the Policy No. 64 update.
S5 B.5 Sprint generally opposes any excessive setback requirement
applicable to small wireless facilities (SWFs). As mentioned
above, it is important for carriers to have maximum flexibility
on the placement of wireless facilities to ensure high quality
coverage. Especially in areas where macro cell tower
placement is restricted, SWFs are critical to carriers’ ability to
fill in gaps to ensure high quality wireless coverage. In addition,
unnecessary setback requirements could compromise the
adequacy of coverage in areas that could be vulnerable to
emergency situations, and adversely affect first responders’
ability to react to the emergency.
This setback was originally designed for macro cell sites
and only applies to public/private property, outside of the
ROW. The draft policy proposes to apply it to SWFs that
locate outside the ROW on public/private property. The
setback is the same as the underlying zoning district,
except when adjacent to residential. Then the wireless
facility will be required to be maintain a setback equal to
the height of the support structure. Staff does not
consider these setbacks to be excessive.
The draft policy also allows SWFs in all road ROWs which
provides flexibility for completing wireless networks.
S6 B.9 Sprint suggests adding clear definitions of “lattice tower” and
“non-antenna equipment” to ensure consistent application of
the guidelines and to provide clarity. Sprint frequently utilizes
remote radio heads, which Sprint considers to be auxiliary
antenna equipment, and such equipment is not always feasible
to install behind the antennas.
These requirements are part of the existing policy.
Adding definitions to Policy No. 64 is beyond the scope of
this update. Staff recommends that definitions could be
considered along with other code and policy clean-up
items as part of a separate work effort.
S7 C.2.c
C.2.e.2
Sprint opposes any limits on the cumulative size of antennas
and supporting equipment that deviate from established FCC
guidelines. Size limits should be no more restrictive than 3
cubic feet for antennas, and 28 cubic feet for supporting
equipment.
The Small Cell Order does not mandate that all cities
approve 28 cf. of accessory equipment, only that
applications that meet the FCC definition are subject to
the faster shot clocks and specific limits on local aesthetic
regulations. Nine cubic feet in residential and 17 cubic
feet in non-residential are reasonable limits that balance
size with the carrier’s technical requirements. The draft
was edited to allow 9/17 cubic feet on poles, 9/17 cubic
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feet mounted to the ground, and no specified limit to
underground equipment, pending approval by the
engineering manager. This should prove feasible for the
carriers technical requirements.
S8 C.2.h,
C.5
Sprint suggests clarification of the provision applicable to
cables, wires, and connectors; in particular, the blanket
prohibition against hanging or looping wires. It is not always
feasible to use 90 degree connectors without compromising
transmission quality. Carriers should have more flexibility to
position cables and wires to optimize network performance.
The city can prohibit this based on aesthetic reasons,
however wires and cables, etc., can be in some kind of
box, shroud or conduit. The draft policy was clarified to
state that looping or hanging wires are prohibited only if
located outside of an equipment cabinet.
S9 D.1 Sprint believes changing the noise standard language from
“such as” to “including” could be read as overly restrictive.
Applying the standards to all equipment, rather than narrowly
focusing the language on specific equipment such as
generators, could impose unnecessary costs and burdens on
carriers. The language should be kept as-is.
The draft policy was changed to include “such as”. This is
existing language and there has not been an issue with
using the phrase “such as”.
S10 D.5
E.1.d
Sprint opposes any requirements or restrictions related to RF
emissions that deviate from FCC standards, as such
requirements could introduce unnecessary costs and delays to
the deployment process. Carriers should not be required to do
more than certify compliance with existing FCC standards.
The draft was revised to ensure it does not impose a
standard for measuring RF exposure that is not present in
the FCC’s regulations. Also, in place of the post-
installation report required by D.5, the draft proposes a
new section that requires compliance with laws, including
those pertaining to RF emissions, at all times on an
ongoing basis. This requirement allows the permit
decision maker to ask for additional RF studies at any
time if they have reason to good cause to believe that the
facility is not in compliance with any laws applicable to
human exposure to RF emissions.
Consistent with FCC rules, the policy draft requires an
applicant to submit an RF exposure compliance report
that certifies that the proposed facility, both individually
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and cumulatively with all other emitters in the vicinity,
will comply with applicable federal RF exposure standards
and exposure limits.
A1
C First, many provisions in the Policy do not meet the
requirements of the Federal Communications Commission's
(FCC) September 2018 Declaratory Ruling and Order, FCC 18-
133 (Order), as well as federal regulations that implement that
Order. The Order established that local agency aesthetic
regulations for wireless facilities must not be more
burdensome than those applied to other types of local agency
or private infrastructure developments. Examples of
regulations in the Policy that are not consistent with the
Order’s new standard include restrictions on wireless facilities
as to height, location, stealthing and disguising, setbacks and
utility undergrounding that are not imposed on other
infrastructure items in the City.
This comment is vague and doesn’t point to a specific
section or standard that in conflict with the FCC Order.
Furthermore, the FCC order allows local jurisdictions to
establish reasonable aesthetic and application
standards. The City’s requirements are fairly consistent
with other cities that require stealthing, concealment and
some investigation into more preferred alternatives. In
addition, the Ninth Circuit overruled the two most
restrictive features of the FCC’s SWF rules on local
aesthetic regulations – that they had to be objective and
no more burdensome than those applied to other
infrastructure.
Also, the city added exemptions to ensure conflicts with
CPUC General Order 95 do not occur.
A2 C ? Second, many provisions in the Policy do not meet the
requirements of the Order and implementing regulations (47
C.F.R. section 1.6002) regarding the deployment of small cell
wireless facilities. Restrictions in the Policy including about the
location, placement, height, disguising, equipment and
antennas size, and equipment location for small cell facilities
are not consistent with federal regulations.
This comment is vague and doesn’t point to a specific
section or standard that in conflict with the FCC Order.
Furthermore, the FCC order allows local jurisdictions to
establish reasonable aesthetic and application standards.
A3 D.5
E.1
Third, many provisions in the Policy impose application
submittal requirements for wireless facilities that are
inconsistent with federal and state standards. Examples of
inconsistencies include application requirements to study the
cumulative effect of radio frequency (RF) energy for all RF
emitters in the vicinity of a proposed wireless facility, network
The RF report requirements were changed in the draft to
be consistent with FCC requirements. Also, the city
added exemptions to ensure conflicts with CPUC General
Order 95 do not occur. Contrary to this assertion, no
other conflicts with law occur in the draft.
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maps, explanation of proposed services, service objectives,
showings about no feasible alternative locations, showings
about designs being the least visible to the public or the least
disruptive to the subject property, and photosims. These
application standards do not comply with a range of federal
and state laws and decisions.
A4 An option for the City to address inconsistencies between the
Policy and provisions of federal and state regulations as
identified in the attachment to this letter is to add some
exemption language to the Policy (and/or the City Code on
wireless facilities.) The exemption language would be to the
effect that, upon a wireless carrier's written explanation to
the reasonable satisfaction of the City Planner about the
inconsistency of a provision(s) of the Policy with applicable
law, the City Planner would exempt the identified element or
portion of the wireless carrier's facility application from the
provision(s) of the Policy.
The draft was amended to include an exemption for
conflicts between the policy and federal or state law. An
applicant must provide evidence of this conflict, and the
exemption only applies to the specific provision in
question.
A5 Process Question: SWF’s in ROW that meet all design criteria are
approved by a ROW Permit; or, if they do not meet all design
criteria, must they apply for a CUP? Can they apply for a CUP
if they do not/cannot meet the design criteria?
The draft proposes an exemption for conflicts between
the policy and federal or state law, which can be used to
address issues with technical infeasibility. An applicant
must provide evidence of this conflict, and the exemption
only applies to the specific provision in question. The
policy does not allow for an SWF within the ROW to apply
for a CUP if they do not meet the criteria of Policy No. 64.
A6 C.1 Generally agree with proposal. SWFs attached to existing
poles in the ROW will be the typical application.
The city acknowledges that most SWFs will be installed
on existing poles in the ROW.
A7 C.2.a Typically, the desired antenna height is approx. 27’ +- (5G will
be lower) and desire to be attached to existing light standards
in the ROW. The FCC definition of SWF’s allows up to 50 feet.
This proposed limitation may require a CUP if an existing pole
is, for example 20 ft tall and if the desired antenna height is 27
feet.
The limit may be set lower. The most common way to set
height limits in the ROW is with reference to the
underlying pole as this subsection currently does. Our
height limit allows new and replacement poles to go up
to height of the city’s standard streetlight pole, which is
approximately 24’. Plus 5’ for the SWF antenna is 29’,
Dec. 14, 2021 Item #16 Page 154 of 252
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May need to take a closer look at height limits if replacing an
existing pole that is substantially shorter than typical light
standards (ie. decorative lights).
which is high enough for AT&T’s desired antenna height
of 27’.
Staff didn’t add a separate height limit for areas of
decorative lights, only a requirement that
new/replacement poles be substantially similar in
color/style/design as existing decorative streetlights. So
presumably an applicant could propose a taller
new/replacement pole in an area of short decorative
lights as long as it was substantially similar in design.
A8 C.2.c One of our Biggest Issues: The limitation of 3cf, including the
required concealment, brackets, mounting arms, etc, is in
conflict with the FCC definition and can result in a CUP vs
ROW permit in many cases. I would like to discuss the 6 cf
scenario with you.
The draft was revised to delete the six cubic foot limit for
antennas, which should address this comment.
A9 C.2.e.2(a) One of our biggest Issues: The FCC definition allows up to 28
cf. with no specific dimensional limitations. This dimensional
limitation will trigger a CUP vs ROW permit. Typically, 4G
equipment is under 4cf with 5G equipment about the same.
For example, a “concealed cabinet” for 4G equipment is 14’ x
18”x 46”.
Staff deleted the 12-inch depth limit from the draft
policy. A CUP does not apply when an SWF cannot
comply with the policy. SWFs are only subject to ROW
permits and building permits, according to draft Policy
No. 64
A10 C.3.a Clarify “Centerline requirement” for new poles. Staff determined that this requirement is not necessary
and proposes to delete it from the policy.
A11 C.5.a & b This section can conflict with State GO95 and requirements
regulated by SDG&E.
Edits in the draft were made to ensure this section is
flexible enough for applications to comply with GO 95.
A12 D.5 AT&T is required to comply with the FCC regulations including
RF emission limitations. This “post integration” regulation is
above and beyond the FCC requirements. Small wireless
facilities typically operate at a fraction of the allowed MPE
It is acknowledged that the post-installation requirement
for an RF report is beyond what the FCC requires, and this
requirement has been deleted from the draft.
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levels. AT&T considers this to be beyond what the FCC
requires, and stated that the FCC requires limits to be met
cumulatively already, and that they must already demonstrate
compliance to the FCC. AT&T is ok to provide predictive
modeling with applications, but not the RF reports after
installation.
The 5% rule proposed for cumulative RF sources would be
practically difficult to implement, as it would be difficult to tell
where the other sources are coming from and how much they
contribute to the cumulative.
In place of the post-installation report required by D.5,
the draft proposes a new section that requires
compliance with laws, including those pertaining to RF
emissions, at all times on an ongoing basis. This
requirement allows the permit decision maker to ask for
additional RF studies at any time if they have reason to
good cause to believe that the facility is not in compliance
with any laws applicable to human exposure to RF
emissions.
Consistent with FCC rules, the policy draft requires an
applicant to submit an RF exposure compliance report
that certifies that the proposed facility, both individually
and cumulatively with all other emitters in the vicinity,
will comply with applicable federal RF exposure standards
and exposure limits.
Dec. 14, 2021 Item #16 Page 156 of 252
Policy 64 Update
Public Review Comments and Staff Responses
# Commenter Comment Staff Response
1 Multiple
comments
Public comments express concerns about placement of facilities in
residential areas.This wireless infrastructure has no proven safety
records and I do not want it near my home. They shouldn’t be
placed near any residential structures!
Cities cannot prohibit or effectively
prohibit the provision of personal wireless
or telecommunications services under
federal law.”
2 Jamie Jacobs We have very poor service from all providers on Sausalito Avenue
which creates some safety risk from a communication perspective.
Would be great if coverage was increased in this area. Thank you.
Comment noted. Policy 64 is intended to
regulate wireless facilities in a way that
strikes the appropriate balance between
the preservation of community aesthetics
with the need for reliable coverage and
capacity throughout the city.
3 Michael
Percopo
Yes, let's come into the 21st Century and wire Carlsbad to have G5
everywhere.
Comment noted. Policy 64 is intended to
regulate wireless facilities in a way that
strikes the appropriate balance between
the preservation of community aesthetics
with the need for reliable coverage and
capacity throughout the city.
4 Christine Edman Thank you for your diligence in making public health a top priority! It is the city’s goal to protect the health,
safety and welfare of the public to extent
allowed by applicable laws as they relate
to telecommunications and the ability of
local jurisdictions to regulate
telecommunications.
5 Anonymous 1 The sooner this is implemented across the City, the better.
Everyone should have equal access.
Comment noted. Policy 64 is intended to
regulate wireless facilities in a way that
strikes the appropriate balance between
the preservation of community aesthetics
with the need for reliable coverage and
capacity throughout the city.
6 Multiple
Comments
Public comments expressed concerns about potential hazards from
radiofrequency emissions.
The city is preempted by federal law and
cannot regulate based on the Exhibit 6Dec. 14, 2021 Item #16 Page 157 of 252
# Commenter Comment Staff Response
environmental effects from RF emissions
to the extent that such emissions comply
with FCC regulations. This preemption
applies both to the requirements of Policy
64 and the review of permits for WCF and
SWF installations.
7 Kristin Newsom Our neighborhood has terrible cell connectivity issues whether it be
Verizon or ATT. We have to go out the street to hopefully not get
disconnected. We have reached out to Verizon to help us solve the
issue to no avail. We live on the lower area of Sausalito Ave. TY
Comment noted. Policy 64 is intended to
regulate wireless facilities in a way that
strikes the appropriate balance between
the preservation of community aesthetics
with the need for reliable coverage and
capacity throughout the city.
8 Nancy Powers If equipment is to be placed on residential property, that property
owner should be notified in writing 60 days in advance of the type
of equipment (size, location, specifications), and have the option to
refuse the installation.
Wireless communications infrastructure
cannot be installed on private property
without the property owner’s
authorization, and the owner would have
the option to refuse the installation.
9 Brian Carstens There are two sections of concern in City of Carlsbad Council Policy
Statement Policy-64: Section B. Design Guidelines, 5. Setbacks: 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. Are you aware that Verizon is proposing
a WCF in the middle of Poinsettia Park that violates this design
guideline? Please tell Verizon that the WCF must be located outside
of the park boundaries by a distance equal to the height of the
pole. D. Performance Guidelines: 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)
According to the details of the application,
the proposed WCF at Poinsettia Park
(project number CUP 2021-0002) complies
with this standard – the height of the
support pole will be approximately 80
feet, but it is located over 400 feet from
the nearest property line of the park
parcel.
Pre-installation RF compliance reports will
be required for each application. Post-
installation compliance procedures under
Section D.5 will allow the city to require RF
emissions testing if there is cause to
believe the antennas are exceeding FCC
rules.
Dec. 14, 2021 Item #16 Page 158 of 252
# Commenter Comment Staff Response
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. Has the City of Carlsbad ever received a
project implementation report with the RF measurements? This is
an important tool to preserve public health and safety. Please do
not remove this language from Policy-64
10 Multiple
comments
Public commenters express concern about liability for damages and
injuries caused by wireless facilities.
The city requires insurance and
indemnification as part of it’s master
license agreement for wireless
communication facilities. A master license
agreement is required for any WCF or SWF
located on city owned facilities, such as a
streetlight or traffic signal.
Insurance requirements are summarized
as minimum of Commercial General
Liability policy with a $2M per occurrence
and $4M general aggregate, covering
operations, independent contractor,
contractual liability, personal injury and
advertising injury.
For indemnification, licensees are required
to indemnify the city and all agents of the
city for any and all claims incurred in
connection with or arising in whole or in
part from the installation, use,
maintenance, repair or removal of the
equipment or licensee’s breach of any
provision of the master license agreement.
Dec. 14, 2021 Item #16 Page 159 of 252
# Commenter Comment Staff Response
The insurance and indemnification
required by the master license agreement
cover ongoing operations of the WCF or
SWF equipment, and would include
damages due to a fire if caused by the
equipment. In addition, the city requires
insurance and indemnification for the
installation and any construction activities
required. Through the master license
agreement, the city is adequately
protected from claims in the event that a
fire is caused an applicant’s WCF or SWF.
An option is included in Exhibit 4 to add
requirements for insurance and
indemnification for WCFs and SWFs not
subject to a master license agreement.
11 Irene Tsutsui 1 2. As I mentioned to you, the Precautionary Principle puts the
burden of responsibiity on the telecoms. Used in Europe, it has
ensured greater safety. It is utilized by corporations in the USA
when environmental concerns are involved. It also includes active
citizen input and participation. I will send more information along
with recommendations for testing at installation sites by the City as
recommended by the attorney Andrew Campanelli. He maintains
that technical specifications on applications are often inaccurately
presented thus posing hazards to citizens. At the meeting Jay Varon
and I had with Jason Haber and Gary Barberi last year, the idea of
forming a committee of several Carlsbad citizens was posed; the
recent historic ruling against the FCC along with the uncertainty of
the outcome of other lawsuits against the FCC magnifies the
importance of engaging the community.
Carlsbad is compelled to comply with
Federal and State law with respect to WCF
and SWF installations, irrespective of any
potential uncertainty in laws and pending
court cases. The city monitors applicable
laws for wireless communications, and
should changes occur, amendments to our
policy can be made as well. This applies to
the referenced Precautionary Principle as
well – the city cannot apply additional
caution where it conflicts with law.
The city is preempted by federal law and
cannot regulate based on the
environmental effects from RF emissions
to the extent that such emissions comply
Dec. 14, 2021 Item #16 Page 160 of 252
# Commenter Comment Staff Response
with FCC regulations. This preemption
applies both to the requirements of Policy
64 and the review of permits for WCF and
SWF installations.
12 Multiple
comments
Public comments expressed concerns about potential fire safety
hazards caused by wireless facilities.
Carlsbad Fire Prevention has not seen any
concerns of fire within our Wildland Urban
Interface areas due to cellular antennas,
but rather due to electrical transmissions
lines. Statewide, the fire prevention
industry’s efforts have been focused on
the area of fire risk due to electrical
transmissions lines. With this in mind, the
City recognizes potential risks of downed
electrical facilities that may occur by the
addition of more equipment to utility
poles.
Accordingly, all applications for wireless
communications facilities, including small
wireless facilities, are reviewed by the
Carlsbad Fire Prevention Bureau. The
California Fire Code addresses relative
code concerns regarding the installation of
wireless communication facilities
throughout the state, and Fire Prevention
ensures that these installations meet state
code where applicable. All applications
will also require building and safety review
to evaluate compliance with structural
support and loading standards
13 Irene Tsutsui 1 SB9 which passed in California will allow multi-unit buildings on a
single-family parcel thus increasing density and human exposure to
Carlsbad is compelled to comply with
Federal and State law with respect to WCF
Dec. 14, 2021 Item #16 Page 161 of 252
# Commenter Comment Staff Response
the hazards of 4G/5G Smart cell antenna and tower installations.
Now is the time to take steps to lessen the overall hazard exposure
that will escalate with higher population density.
SB9 The California H.O.M.E Act
https://urldefense.com/v3/__https://focus.senate.ca.gov/sb9__;!!
E_4xU6-vwMWK-
Q!66EjWXM46EJ2ckOVxUIZVUIYdPyZwWGzPMx99RROE9XZ173car
0Yc_M4E7aQVwaAFlbRvj8$
and SWF installations, irrespective of
population or dwelling unit density. The
city is not permitted to factor these
aspects in reviewing and approving
permits for WCFs and SWFs.
14 Irene Tsutsui 2 Add a statement that the City ensures WCF placement in a way that
does not 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, electrical fires or
other related adverse events. See Irene Tsutsui Letter 2 attached
to this table for additional info and suggested language.
The draft policy includes requirements to
limit impacts to aesthetics and safety
requirements, and includes proximity to
residential uses as a factor in the decision.
All wireless facilities will be reviewed by
the city’s Fire Prevention Bureau.
15 Irene Tsutsui 2 The city should require public notice for small cell installations in
the ROW. See Irene Tsutsui Letter 2 attached to this table for
additional info and suggested language.
Exhibit 4 contains an option for
consideration by the City Council to add
notification for small wireless facility
applications.
16 Irene Tsutsui 2 Policy 64 should prohibit WCFs from being installed on or near a
ridgeline or slope abutting a chapparal populated area due to fire
risk. See Irene Tsutsui Letter 2 attached to this table for additional
info and suggested language.
Small wireless facilities are unlikely to be
proposed on ridgelines or in open space
areas due to the more limited range.
Macro WCFs can be proposed in these
areas and will go through the existing
permit process in Policy 64, including
review by the city Fire Prevention Bureau.
17 Irene Tsutsui 2 The city should require a post installation RF study prepared by an
independent and qualified individual certifying compliance with
FCC regulations if the city finds cause to do so. See Irene Tsutsui
Letter 2 attached to this table for additional info and suggested
language.
Section D.5 provides procedures for
enforcing ongoing compliance with FCC
regulations.
Dec. 14, 2021 Item #16 Page 162 of 252
# Commenter Comment Staff Response
18 Irene Tsutsui 2 The city should replace the proposed Compliance with Laws section
with one from Malibu that addresses technology and safety
upgrades. See Irene Tsutsui Letter 2 attached to this table for
additional info and suggested language.
The draft policy for the city includes
permit term requirements, the intent of
which to require assessments of new
technology and shielding for wireless
facilities.
19 Mark Graham Your web page says, "Next steps All input gathered will be
presented to the City Council in December when the updated policy
and guidelines will be considered for adoption."
With all due respect this is way too fast for the City or its residents.
Municipal telecommunications policy is complicated. Haste makes
waste. There is not enough time for the City to really learn the
extent of its possible regulatory authority per the
Telecommunications Act of 1996 and applicable case law, consider
recommendations by its residents, prepare specific written
ordinance or resolution for the Council, receive advice from the
City Attorney or other attorney that the City will hire for this
purpose, negotiate or at least communicate with the
telecommunications companies who will surely have an interest in
your amendments to your cell antenna policy, receive input from
your residents on your draft proposed zoning code amendment,
discuss and debate the proposal including residents' comments,
and then discuss and debate the final policy as amended in
response to your residents' comments all by December. Also, there
is Christmas. I recommend that the City use a thoughtful and
complete process to formulate and receive public comment at
every step of the way. This is the best way to achieve a cell
antenna policy that works well for and serves the interests of the
City and your residents.
The Federal Communications Commission
Order was released on September 26,
2018. Since that time, local governments
have been required to implement the
order regardless of existing policies or
regulations.
The city started an effort to update this
policy in 2020, but the effort was put on
hold so the City Council could hold a
workshop. The workshop was held on
June 23, 2021. Without an update to
Policy 64, there are no additional
requirements or standards to show the
city’s preferences on locations. At the City
Council meeting, the City Council can
make modifications to the policy, or
provide additional direction to staff on
items to include and not include.
20 Mark Graham 3. Require applications to demonstrate that a given proposed cell
antenna will close a significant gap in coverage and do so using the
least intrusive means. The U.S. Court of Appeals for the 9th Circuit
interpretation of the TCA is still the prevailing case law today.
Staff disagrees. The FCC rejected
significant gap demonstrations as a basis
for local permit denials for small wireless
facilities. This portion of the FCC’s decision
Dec. 14, 2021 Item #16 Page 163 of 252
# Commenter Comment Staff Response
MetroPCS, Inc. v. City & County of San Francisco (9th Cir. 2005) 400
F.3d 715.
was upheld in City of Portland v. USA, 969
F.3d 1020 (9th Cir. 2020).
21 Mark Graham 5. Require the applicant to file with the City, as a condition of
permit issuance, a copy of the applicant's routine environmental
evaluation for the proposed cell antenna, which the National
Environmental Policy Act (NEPA) and the procedures of the Federal
Communications Commission (FCC) implementing NEPA require the
applicant to prepare.
Adopted. The City may include in its
application materials an environmental
assessment/compliance requirement.
22 Mark Graham 6. Require the applicant to pay the City a certain amount of money
with each permit application, determined by the City, which the
City will use to hire an independent expert to review and evaluate
the completeness and accuracy of each cell antenna permit
application including, without limitation, the alternative site
analyses and radio frequency emissions report.
This change is included as an option in
Exhibit 4. The City may reserve the option
to hire third party consultants to review
issues that require specialized training or
experience.
23 Mark Graham 7. Become familiar with the effective range of cell antenna signals.
This is directly relevant to the question of placement and how
many cell antennas are really necessary in a given area. According
to former Verizon CEO Lowell McAdam the range of a Verizon 5G
cell antenna is greater than 2,000’. This is in the real world, not the
result of a calculation or an ideal but unusual situation such as
between two antennas on rooftops. Therefore telecom’s claim that
a cell antenna is needed every 300’ or 500’ is simply not true. For
more information, see Mark Graham letter attached to this table.
Staff disagrees. Cities cannot prohibit or
effectively prohibit the provision of
personal wireless or telecommunications
services.
24 AT&T In Section A.2, the reference to Section E.2 should be changed to
E.1 as E2 is for SWFs and this section excludes SWFs
The city agrees and will make the edits.
25 AT&T Regarding Section C applying to both WCFs and SWFs, SWFs are a
subset of WCFs, so query whether SWFs need to be called out
throughout the Section C unless the regulation is meant to be SWF
only.
Adopted. Staff reviewed the proposed
changes to Section C in consideration of
applying to both WCFs and SWFs, and
made minor edits for the purpose of
clarification.
26 AT&T In Section C.1.c regarding determinations of whether a more
preferred support pole type exists nearby, reduce the radius from
This change is included as an option in
Exhibit 4.
Dec. 14, 2021 Item #16 Page 164 of 252
# Commenter Comment Staff Response
500 ft. to 200 ft. for , as a 500 ft. radius is too far in terms of ruling
out alternatives for a SWF, which may only propagate 800 ft.
27 AT&T In Section C.2.c, the federal definition of “small wireless facility,” 47
CFR 1.6002(l)(2), states that “each antenna associated with the
deployment. . . is no more than three cubic feet in volume.”
Mounting arms, hardware, and concealment elements are not
included in the three cubic foot per antenna volume limit. The
provision should be modified to comply with federal law and delete
these items.
Adopted.
28 AT&T In Section E.8, if the intent is that a single provider can file multiple
batches of 10 on the same day, clarification is required. The city,
however, cannot cap total batches submitted by a single provider
or implement a moratorium on submittals “at one time,” if the
result prevents a provider from filing applications. Under paragraph
155 of the FCC Small Cell Order, batching of SWF permits is clearly
permitted.
City staff could not reasonably process an
unlimited number of applications for
completeness within the 10-day review
period. Reasonable submittal limits are
appropriate to comply with the shot
clocks.
29 Verizon Verizon also requests that the City Staff further engage the wireless
industry about proposed changes to the Policy and looks forward to
continuing conversations on this matter in either a Stakeholders
Meeting or in separate discussions with each carrier before the
revised Policy is presented to the City Council for consideration
Staff disagrees. Staff met with any
stakeholders who requested a meeting,
which includes meetings with AT&T in
2020 and meetings with AT&T, Verizon
and a citizen group organized by Karen
Rich in 2021. Numerous public comments
have been considered and have been
incorporated into the Policy as
appropriate. Industry comments that have
not been accepted typically involve
disagreement over the extent the City’s
authority would be limited or preempted
by federal and state law.
30 Verizon Small wireless facility location restrictions and justification
requirements: Policy regulations include requirements that
prohibit certain areas for locating a wireless facility, that push
facilities into “preferred” locations and away from ”discouraged”
Staff disagrees. Federal law requires local
aesthetic regulations to be (1) reasonable
(i.e., technically feasible) and (2) published
in advance. Whether the City’s preferred
Dec. 14, 2021 Item #16 Page 165 of 252
# Commenter Comment Staff Response
areas, that impose unreasonable setback requirements, and that
require alternative site analyses and business justifications for
facilities. These regulations are contrary to federal law and will also
make large swaths of City lands off limits to needed wireless
facilities, which will create many significant gaps in Verizon’s
network coverage and capacity.
These types of regulations should be eliminated as to small wireless
facilities.
locations are technically feasible must be
evaluated on a case-by-case basis after the
application is filed. To the extent that any
regulation is not technically feasible, the
applicant may seek an exception under
Section E.11.
31 Verizon Small wireless facility design restrictions: Policy regulations also
improperly restrict the height of small wireless facilities, attempt to
control the wireless technologies used for facilities, require
infeasible and costly undergrounding of all utilities serving a facility
and all accessory equipment, and impose infeasible and costly
design elements that cannot be reasonably implemented in the
field. Such restrictions and limitations are not consistent with
federal regulations and FCC rulings that expressly apply to the
allowed height, size and design of small wireless facilities. The
restrictions will improperly inhibit the needed deployment of
wireless facilities within the City, which is not consistent with
federal law and policy.
These types of regulations should be eliminated as to small wireless
facilities.
Staff disagrees. Federal law requires local
aesthetic regulations to be (1) reasonable
(i.e., technically feasible) and (2) published
in advance. The FCC’s definition of a
“small wireless facility” under 47 C.F.R. §
1.6002(l) is a regulatory classification that
subjects the application to special shot
clocks and limitations on aesthetic
regulations. The FCC does not mandate
that cities approve any small cell that
meets the definition. To the extent that
any regulation is not technically feasible,
the applicant may seek an exception
under Section E.11.
32 Verizon 1. Review Restrictions (The City may not prevent completion of a
network, p. 3).
The City should add language here in the discussion of the
“materially inhibits” standard to explain that the FCC Small Cell
Order determined an effective prohibition of service occurs “where
a state or local legal requirement materially inhibits a provider’s
ability to engage in any of a variety of activities related to its
provision of a covered service. This test is met not only when filling
a coverage gap but also when densifying a wireless network,
Staff disagrees. Policy 64 already provides
an overview and citation to the applicable
standard.
Dec. 14, 2021 Item #16 Page 166 of 252
# Commenter Comment Staff Response
introducing new services or otherwise improving service
capabilities.” “Thus, an effective prohibition includes materially
inhibiting additional services or improving existing services.” (FCC
Small Cell Order ¶ 37 and footnotes 85-87.)
Further explanation on these items should be added to the Policy
33 Verizon 2. Permit Process (Table A Processing Requirements, p. 6).
Permit Process (Table A Processing Requirements, p. 6).
The attempted location preferences incorporated into Table A to
locate WCFs mostly only in non-residential and non-open space
zones could result in an effective prohibition of Verizon’s wireless
services in violation of 47 U.S.C. §332(c)(7)(B)(i)(II). Limiting or
prohibiting WCFs from being located in or adjacent to residential
and open space zones and areas of the City ignores the fact that
network coverage/capacity needs and network coverage gaps exist
in residential and open space areas. The limitations therefore are
not consistent with federal law as explained more in Comment Nos.
3 and 4 below.
These types of location restrictions in this Table should therefore be
removed or revised.
Staff disagrees. The location preferences
do not prohibit services in any location.
34 Verizon 3. Review and Approval Guidelines (Location Guidelines Sections
A.1 and A.2, p. 7).
Further, the significant WCF (not SWF) siting restrictions stated in
the Preferred and Discouraged Locations are too broad, and very
likely will lead to an improper prohibition of wireless services.
Application of the location restrictions in these Sections will make
large swaths or areas of the City off limits to wireless sites, which
could create many significant gaps in Verizon’s network coverage
and capacity.
Application of the location restrictions could violate 47 U.S.C.
Section 253(a), which states that “[n]o State or local statute or
Adopted in part. Section E.11 provides an
exception process if any regulation under
Policy 64 would violate federal or state
law as applied. On their face, the location
preferences do not prohibit services in any
location. Whether the location standards
as-applied would result in an effective
prohibition is a determination that the City
may evaluate at the time it denies an
application.
Dec. 14, 2021 Item #16 Page 167 of 252
# Commenter Comment Staff Response
regulation, or other State or local legal requirement, may prohibit
or have the effect of prohibiting the ability of any entity to provide
any interstate or intrastate telecommunications service.” The
limitations may therefore result in a prohibition, or an effective
prohibition, of wireless services in violation of the Section 253 of
the TCA.
Further, application of the City’s location restrictions applied to a
particular proposed WCF also cannot prohibit or have the effect of
prohibiting the provision of wireless services under 47 U.S.C.
§332(c)(7)(B)(i)(II) and T-Mobile USA, Inc. v. City of Anacortes, 572
F.3d 987 (9th Cir. 2009) where Verizon has a significant gap in
coverage and has proposed the least intrusive means to fill that
gap.
These types of location restrictions in this Section should therefore
be removed or revised to allow for an exception process for the
placement of WCFs.
35 Verizon 4. Review and Approval Guidelines (Location Guidelines Section
A.2, p. 7).
.
This Section improperly requires an applicant to show “no feasible
alternative” to siting a WCF (not a SWF) in a Discouraged Location.
The legal test that is consistent with federal law is the “least
intrusive means” test established by the Ninth Circuit in T-Mobile
USA, Inc. v. City of Anacortes, 572 F.3d 987, 997-98 (9th Cir. 2009).
The City may not enforce a standard that is not consistent with
federal law.
The regulations in this Section should be revised to refer only to the
“least intrusive means” standard.
Adopted. The phrase “no feasible
alternative” was not intended to create a
different legal standard than the Ninth
Circuit’s “least intrusive means” test.
Under that test, an alternative must be
“technically feasible” and “potentially
available” (i.e., the applicant could obtain
a lease to use the property).
36 Verizon 5. Review and Approval Guidelines (Location Guidelines Section
A.3, p. 7).
Staff disagrees. This standard expresses a
common aesthetic regulation that facilities
Dec. 14, 2021 Item #16 Page 168 of 252
# Commenter Comment Staff Response
This Section improperly requires an applicant to show that any
location for a WCF (not a SWF) is the “least visible to the public”,
“least disruptive to the appearance of the host property”, not
“readily visible”, or “hidden or disguised.” But, as stated above, The
legal test that is consistent with federal law is the “least intrusive
means” test established by the Ninth Circuit in T-Mobile USA, Inc. v.
City of Anacortes, 572 F.3d 987, 997-98 (9th Cir. 2009).
The regulations in this Section should therefore be revised to refer
only to the “least intrusive means” standard.
must be concealed from public view using
techniques that hide or blend the facility
into the underlying structure or property.
37 Verizon 6. Review and Approval Guidelines (Design Guidelines for WCFs
and SWFs, Section B.1, p. 8).
Section B.1 defines “stealth” in a manner that is likely not
consistent with applicable law because the City could easily apply
the definition in a way that would effectively prohibit SWF
deployment if, for example, the City determined that antennas or
equipment, which complies with the federal size standards for
SWFs, does not “visually blend into the background or the surface
on which they are mounted.”
Further, the design principles and requirements of this Section
should not be applied in a manner that results in prohibitive cost
impacts or results in a prohibition of wireless network services. The
City’s Policy cannot materially inhibit deployment of
telecommunications networks or create an appreciable impact on
resources that materially limit plans to deploy wireless service. The
FCC determined that increased per SWF costs could impair and
impede the needed deployment of SWFs, which is inconsistent with
national policy. (See FCC Small Cell Order ¶ 24.) Costly conditions
imposed for site approval, such meeting subjective and undefined
design standards, drain Verizon’s capital resources that otherwise
could be used for network deployment, and would be improper to
the extent fees or costs prohibit, or have the effect of prohibiting,
Staff disagrees. Stealth designs and other
concealment techniques would not be
satisfied by complying with the FCC’s
definition of a “small wireless facility”,
which describes facilities in terms of
height and volume, not their aesthetic
characteristics.
Dec. 14, 2021 Item #16 Page 169 of 252
# Commenter Comment Staff Response
the provision of wireless services. (See FCC Small Cell Order ¶¶ 54-
61.)
Moreover, incurring additional costs for an alternative design
solution is one factor that can be used by a carrier to reject the
alternative design even in the context of macro wireless facility or
WCF applications. (See T-Mobile USA, Inc. v. City of Anacortes, 572
F.3d 987, 998 (9th Cir. 2009).)
The regulations should be revised to state that SWF designs meet
the “stealth” requirement if they comply with the height, size and
dimension standards identified in 47 CFR § 1.6002(l).
38 Verizon 7. Review and Approval Guidelines (Design Guidelines for WCFs
and SWFs, Section B.4, p. 8).
The height limitations imposed in this Section on SWFs (compliance
with height limitations in the zone and limiting heights to that of
existing or replacement structures for new attachments) are
inconsistent with federal and state law and should be revised.
SWFs can be mounted on new structures or can extend the height
of the existing pole or structure to higher than other adjacent
structures, including reaching a height of up to 50 feet. (47 CFR §
1.6002(l)(1)(i)-(iii).) The height allowances under federal law could
exceed either the height limits in a City zone or the height of the
structures being replaced. Also, CA Public Utilities Commission
(CPUC) General Order 95 contains mandatory safety-related
separation standards for equipment and lines attached to poles,
which standards would affect the height of a replacement pole and
associated SWFs.
Also, the WCF height limitations stated in this Section could result
in an effective prohibition of Verizon’s wireless services in violation
of 47 U.S.C. §332(c)(7)(B)(i)(II) if a proposed WCF is required to be
Adopted in part. Sections C.2.a and C.2.e.
provide an exception for compliance with
CPUC General Order 95. Any other
exception to the City’s height standards
could be processed under Section E.11 on
a case-by-case basis.
Dec. 14, 2021 Item #16 Page 170 of 252
# Commenter Comment Staff Response
placed at a height in excess of a height limitation for a zone as
necessary for Verizon to fill a significant gap in service.
The regulations should be revised to state that (1) SWF heights are
allowed if they comply with the height standards identified in 47
CFR § 1.6002(l) and in CPUC General Order 95 (as applicable), and
where technically or structurally necessary, and (2) WCF heights are
allowed as needed to avoid a significant gap in network coverage
and capacity, and to comply with CPUC General Order 95 (as
applicable).
39 Verizon 8. Review and Approval Guidelines (Design Guidelines for WCFs
and SWFs, Section B.5.a-b, p. 8).
The setbacks for SWFs in these sections are not consistent with
federal law, including the definition of SWFs found in 47 CFR
section 1.6002(l)(1)-(6), and the discussion of SWFs in the FCC’s
2018 Small Cell Order. No such setback requirements for SWFs are
stated in federal law. Furthermore, there is typically not enough
space in the public right-of-way to implement such setback
requirements for SWFs. Verizon would also like to raise the
question as to whether the same setback requirements are being
required of other utilities in the public right-of-way as Verizon is a
public utility under the California law. Such requirements, if applied
to SWFs, should also be applied to installations by other utilities in
the public right-of-way in these areas.
Under federal law, local regulations must be applied equally to all
public utilities using the right-of-way. Federal law recognizes the
authority of local governments to “manage the public rights of
way” though on a “competitively neutral and nondiscriminatory
basis.” See 47 U.S.C. § 253(c).
The setback restrictions should therefore be removed for SWFs.
Staff disagrees. These standards apply to
facilities outside the public right-of-way.
Dec. 14, 2021 Item #16 Page 171 of 252
# Commenter Comment Staff Response
Further, for SWFs, a carrier only needs to show that application of
this City setback regulation materially impaired or impeded
Verizon’s deployment of wireless services, as discussed in
Comment No. 1 above, and the setback requirement would be
preempted.
These sections could also result in an effective prohibition of
Verizon’s services in violation of 47 U.S.C. §332(c)(7)(B)(i)(II) based
on the limitations on siting or locating a WCF due to significantly
enhanced setback requirements that don’t apply to any other
structures, and which would result in a significant gap in Verizon’s
wireless network services.
Also, the increased setback regulations for WCFs and SWFs stated
in these sections also appear to be a pretext for impermissibly
seeking to regulate radio frequency (RF) emissions and therefore
violate 47 U.S.C. §332(c)(7)(B)(iv). There is no reason for any form
of increased setback regulations for a WCF or SWF beyond those
that are generally applicable to any other structure. A WCF and
SWF outside the ROW must typically already comply with
reasonable design regulations, and meet all FCC, and building code
standards (including as to noise and structural integrity) to be
approved. Therefore, the proposed significantly increased
minimum setback requirements just for WCFs and SWFs are
arbitrary and unreasonable, and appear to be a pretext based on
the unfounded fears of RF emissions, which is not a valid basis for
local regulation.
The setback regulations should therefore be removed or revised.
40 Verizon 9. Review and Approval Guidelines (Design Guidelines for WCFs
and SWFs, Section B.6, pp. 8-9).
Section B.6 (b) is vague and subjective based on the limitations on
siting or locating a WCF or SWF “as far away as possible from the
Adopted in part. Section E.11 provides an
exception process.
Dec. 14, 2021 Item #16 Page 172 of 252
# Commenter Comment Staff Response
outer edge of a building or structure ….” This Section could result in
an effective prohibition of Verizon’s wireless services in violation of
47 U.S.C. §332(c)(7)(B)(i)(II). The regulation should therefore be
removed or revised.
WCFs and SWFs must be sited close to parapet walls on building
roofs to achieve adequate signal propagation to meet coverage
objectives. The further away from a parapet wall edge the WCF or
SWF is located, the higher the antennas typically must be placed to
project signals over the parapets and to street level elevations
around the building. Pushing a WCF or SWF “far away” from roof
edges could result in an increase the height of the facility, which
may exceed height limitations and will otherwise increase the
visibility of the WCF or SWF and defeat the purpose of Section B.1.
Further, the requirement for equipment for a WCF or SWF on a
residential building to be placed inside a residential structure (as
opposed to an outdoor walled enclosure) is unreasonable, may not
be possible due to space constraints on the private property, and
could be cost-prohibitive.
The regulations should be revised to allow exceptions where full
compliance would be technically infeasible, infeasible due to space
or property owner restrictions or cost-prohibitive.
41 Verizon 10. Review and Approval Guidelines (Design Guidelines for WCFs
and SWFs, Section B.7.c, p. 9)
Requiring trees “tall enough to screen three-quarters of the height
of the monopole at the time of planting” as screening for a ground-
mounted WCF will likely result in an effective prohibition of
Verizon’s wireless services in violation of 47 U.S.C.
§332(c)(7)(B)(i)(II). High trees adjacent to WCF antennas often
cause near-field interference with RF signals and typically
significantly limit the coverage range of a WCF due to signal
blockage of the tall trees. Further, adding trees and landscaping
Adopted in part. Section E.11 provides an
exception process.
Dec. 14, 2021 Item #16 Page 173 of 252
# Commenter Comment Staff Response
may not be possible due to space constraints or property owner
restrictions on the private property, Such screening and
landscaping requirements therefore would prevent Verizon from
closing a significant gap in coverage. Verizon raises similar concerns
to placing monopoles next to tall buildings for the same reasons
(interference, blockage of signal propagation, etc.)
The regulations should be revised to allow exceptions where full
compliance would be technically infeasible or infeasible due to
space or property owner restrictions.
42 Verizon 11. Review and Approval Guidelines (Design Guidelines for WCFs
and SWFs, Section B.10, p. 9)
This Section should be removed or revised for WCFs and SWFs as it
will result in an effective prohibition of Verizon’s wireless services
in violation of 47 U.S.C. §332(c)(7)(B)(i)(II). For SWFs, the FCC
determined that undergrounding requirements, similar to aesthetic
requirements, must be reasonable, or “technically feasible” and
meant to avoid “out-of-character deployments. (See FCC Small Cell
Order, ¶¶ 86, 90.)
For WCFs, utility lines are typically already placed underground in a
trench, unless it is determined by the utility provider to not be
feasible.
The regulations should be revised to allow above-ground
connection of utility lines to SWFs and WCFs.
Staff disagrees. Utilities in the City are
primarily underground. To the extent that
undergrounding would not be technically
feasible, Section E.11 provides an
exception process.
43 Verizon 12. Review and Approval Guidelines (WCF and SWF Design
Guidelines for the ROW Section C1, p. 10).
The FCC Small Cell Order was adopted to provide guidance on
appropriate approval criteria for small cells. The order defines
“small wireless facilities” with specific height and dimension
thresholds. 47 C.F.R. § 1.6002(l). The FCC addressed appropriate
aesthetic criteria for approval of qualifying small cells, which
Staff disagrees. Federal law preserves local
zoning authority subject to specific
limitations. The City’s proposed aesthetic
regulations favor (but do not mandate)
particular locations, support structures,
small equipment and commonly used
concealment techniques to avoid out-of-
Dec. 14, 2021 Item #16 Page 174 of 252
# Commenter Comment Staff Response
criteria were upheld in City of Portland v. United States, 969 F.3d
1020 (9th Cir. 2020), cert. denied, concluding that they must be:
“(1) reasonable, and (2) published in advance.” (FCC Small Cell
Order, ¶ 86.) “Reasonable” standards are “technically feasible” and
meant to avoid “out-of-character deployments.” (Id., ¶ 87.)
California Public Utilities Code Section 7901 grants telephone
corporations such as Verizon Wireless a statewide right to place
their equipment along any public right-of-way,
including new poles.
The proposed preference list in this section has a first preference of
existing or replacement streetlight poles. If the City favors these
types of poles over other options, it would contradict California
Government Code Section 65964(c) which bars cities from limiting
wireless facilities to sites owned by particular parties. Also, having a
preferred structure type list, such as shown in Section C.1, exceeds
federal law requirements above as federal law doesn’t state such a
preference of structure types and such a preference list would then
be an added requirement that goes beyond what the FCC has
deemed reasonable under its Small Cell Order.
Finally, no requirement to show the “least intrusive” design, or that
a “more preferred” support pole, applies to SWFs. In 2018, the FCC
rejected requirements that “applicants … show that the proposed
facilities are the ‘least intrusive means’ for filling a coverage gap.”
(FCC Small Cell Order ¶40 and note 94.) Accordingly, an application
for a SWF is not required to comply with this Section.
Nor can this Section require the “smallest” wireless antenna or
equipment, and the requirement must be removed as unworkable
and inconsistent with federal law. Under the TCA, the City cannot
require Verizon to submit an explanation of the communications
services being provided and whether they are current technology,
character facilities along the City’s rights-
of-way. With respect to the “least
intrusive means” standard, federal courts
within the Ninth Circuit have continued to
apply it to small wireless facilities and
there is great uncertainty as to how they
would apply the FCC’s “material
inhibition” standard.
Dec. 14, 2021 Item #16 Page 175 of 252
# Commenter Comment Staff Response
or otherwise attempt to control the technological and operational
aspects of wireless services. (See New York SMSA Ltd. Partnership v.
Town of Clarkstown 612 F.3d 97, 105-106 (2nd Cir. 2012) (local
requirements or preferences for certain or alternative technologies,
and local attempts to control the technological and operational
aspects of wireless services, violate the TCA).)
Also, the requirement in this Section to utilize “smallest” antennas
and equipment should be removed as it is vague and ambiguous,
and without objective or reasonable standards. Further, wireless
carriers have different network operations and objectives, and the
“smallest” antennas and equipment may be feasible to be used by
one carrier but not feasible to be used by another carrier.
Finally, regarding a SWF, the City cannot require Verizon to show
(1) a “clearly defined technical service objective”, or (2) why the
“least intrusive” design or most preferred pole location is not
available. In 2018 the FCC eliminated requirements that applicants
show a “coverage gap”-based analytical approach for small wireless
facility applications and instead established a new national
standard for what constitutes effective prohibition of service under
the Act. (See FCC Small Cell Order, ¶¶ 9-10, 21, 37 and 40 and
notes 87-88 and 94.)
The regulations in this section should be revised to (1) exempt SWFs
from having to provide alternative site analyses, to show the facility
is the “least intrusive” design or site, to provide coverage maps, or
to use the “smallest” antennas or equipment provided the size and
dimension requirements of 47 CFR § 1.6002(l) are met, and (2)
exempt WCFs from having to use the “smallest” antennas or
equipment.
44 Verizon 13. Review and Approval Guidelines (WCF and SWF Design
Guidelines for the ROW Section C.2.a, p. 11).
Adopted in part. Sections C.2.a and C.2.e.
provide an exception for compliance with
Dec. 14, 2021 Item #16 Page 176 of 252
# Commenter Comment Staff Response
The height limitations imposed in this Section on SWFs are
inconsistent with express federal law and should be revised. SWFs
can be mounted on new structures, or can extend the height of the
existing pole or structure, to higher than other adjacent structures,
including reaching a height of up to 50 feet. 47 CFR § 1.6002(l)(1)(i)-
(iii). The height allowances under federal law could exceed either
the height limits in a City zone or the height of the structures being
replaced. Also, CA Public Utilities Commission (CPUC) General
Order 95 contains mandatory safety-related separation standards
for equipment and lines attached to poles, which standards would
affect the height of a replacement pole and associated SWFs.
Technically infeasible standards for small cells are unreasonable
and prohibitive according to the FCC. (FCC Small Cell Order, ¶¶ 86-
87.)
Also, the WCF height limitations stated in this Section could result
in an effective prohibition of Verizon’s wireless services in violation
of 47 U.S.C. §332(c)(7)(B)(i)(II) if a proposed cell facility is required
to be placed at a height in excess of a height limitation for a zone as
necessary for Verizon to fill a significant gap in service.
The regulations should therefore be revised to state that (1) SWF
heights are allowed if they comply with the height standards
identified in 47 CFR § 1.6002(l) and in CPUC General Order 95 (as
applicable), and (2) WCF heights are allowed as needed to avoid a
significant gap in network coverage and capacity, and to comply
with CPUC General Order 95 (as applicable).
CPUC General Order 95. However, the FCC
does not mandate that all small wireless
facilities that meet the height standard
under the federal definition must be
approved. Cities are entitled to adopt
reasonable (i.e., “technically feasible”)
height limits that are more consistent with
the existing streetscape. Any other
exception to the City’s height standards
could be processed under Section E.11 on
a case-by-case basis.
45 Verizon 14. Review and Approval Guidelines (WCF and SWF Design
Guidelines for the ROW Section C.2.b, p. 11).
The stealthing/concealment requirements may be technically
infeasible to the extent covering the face of certain antennas with a
radome or shroud impedes signal propagation.
Shrouds are required for all antennas, but
the face of certain high frequency
antennas may remain uncovered.
Dec. 14, 2021 Item #16 Page 177 of 252
# Commenter Comment Staff Response
This regulation should be revised or qualified to state “unless
technically infeasible.”
46 Verizon 15. Review and Approval Guidelines (WCF and SWF Design
Guidelines for the ROW Section C.2.c, p. 11).
The size and width standards here are inconsistent with the express
federal regulations on SWFs found at 47 CFR § 1.6002(l).
The regulations should therefore be revised at c.1 to eliminate the
last sentence as only antennas, and not associated equipment items
or shrouds, are included in the 3 cubic feet volume standard at 47
CFR § 1.6002(l)(2). Further, sections c.2 and c.3 should be
eliminated and replaced with language to state only that the width
and design of top-mount antennas should comply with the size and
dimension standards found in 47 CFR § 1.6002(l).
Adopted in part to delete the requirement
that non-antenna elements be included in
the volume calculation for the antenna.
Other antenna design requirements are
not preempted by the definition of a
“small wireless facility” under 47 C.F.R. §
1.6002(l).
47 Verizon 16. Review and Approval Guidelines (WCF and SWF Design
Guidelines for the ROW Section C.2.d -e.1, pp. 11-12).
The FCC Small Cell Order regarding SWFs requires that an agency
utilize “reasonable” design standards that are “technically feasible”
and meant to avoid “out-of-character deployments.” (¶ 87; these
FCC requirements were upheld in City of Portland v. United States,
969 F.3d 1020 (9th Cir. 2020), cert. denied.) Small cell antennas
(including microwave antennas) and equipment could be attached
to poles or structures in the ROW and be consistent with the
character of the surroundings. Further, SWF antennas and
equipment can be attached to a pole consistent the design, size
and volume standards that are stated in the federal regulations
found at 47 CFR § 1.6002(l) and as stated in CPUC General Order
95.
The regulations in these sections should be revised to state that
SWF antennas and equipment can be attached to the pole or
support structure unless out-of-character with the surroundings,
Staff disagrees. The City’s preferences and
standards are designed to ensure that
deployments are not out-of-character with
the surroundings.
Dec. 14, 2021 Item #16 Page 178 of 252
# Commenter Comment Staff Response
and as consistent with the design, size and volume standards found
at 47 CFR § 1.6002(l) and as stated in CPUC General Order 95.
48 Verizon 17. Review and Approval Guidelines (WCF and SWF Design
Guidelines for the ROW Section C.2.e.2, p. 12).
Federal regulations expressly and specifically govern the size or
volume standards for non-antenna equipment for SWFs, and the
City metrics listed in this section do not comply with those federal
rules.
The regulations in this section should be revised to state that all
pole-mounted SWF non-antennas equipment, including cabinets,
can be installed consistent with size and volume standards found at
47 CFR § 1.6002(l).
Staff disagrees. Federal law requires local
aesthetic regulations to be (1) reasonable
(i.e., technically feasible) and (2) published
in advance. The FCC’s definition of a
“small wireless facility” under 47 C.F.R. §
1.6002(l) is a regulatory classification that
subjects the application to special shot
clocks and limitations on aesthetic
regulations. The FCC does not mandate
that cities approve any small cell that
meets the definition. To the extent that
any regulation is not technically feasible,
the applicant may seek an exception
under Section E.11.
49 Verizon 18. Review and Approval Guidelines (WCF and SWF Design
Guidelines for the ROW Section C.2.f, p. 12).
This requires accessory equipment to be installed underground if
feasible. Blanket undergrounding requirements are unreasonable
according to the FCC because small radio boxes or similar items on
the side of a street light pole are not “out-of-character” among
other right-of-way infrastructure.
Further, the FCC determined that increased per SWF costs could
impair and impede the needed deployment of SWFs, which is
inconsistent with national policy. (See FCC Small Cell Order ¶ 24.)
Costly conditions imposed for site approval, such as
undergrounding equipment, drain Verizon’s capital resources that
otherwise could be used for network deployment, and would be
improper to the extent fees or costs prohibit, or have the effect of
prohibiting, the provision of wireless services. (See FCC Small Cell
Order ¶¶ 54-61.)
Adopted in part. The City permits small
radios to mounted above ground in
Section C.2.e.
Dec. 14, 2021 Item #16 Page 179 of 252
# Commenter Comment Staff Response
This section should be revised to state that SWF accessory
equipment does not require undergrounding if the equipment
complies with the volume and size standards identified in 47 CFR §
1.6002(l).
50 Verizon 19. Review and Approval Guidelines (WCF and SWF Design
Guidelines for the ROW Section C.2.j, p. 12).
This Section should be revised to be consistent with federal law. As
discussed above, SWFs can be a height and design allowed under
47 CFR § 1.6002(l)(1) and as required on replacement poles
governed by CPUC General Order 95.
Further, WCFs can be a height needed to fill a significant gap in
wireless coverage. (T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d
987 (9th Cir. 2009).)
The regulations should therefore be revised to state that (1) SWF
heights and designs are allowed if they comply with the height
standards identified in 47 CFR § 1.6002(l) and in CPUC General
Order 95 (as applicable), and (2) WCF heights are allowed as
needed to avoid a significant gap in network coverage and capacity,
and to comply with CPUC General Order 95 (as applicable).
Staff disagrees. Federal law requires local
aesthetic regulations to be (1) reasonable
(i.e., technically feasible) and (2) published
in advance. The FCC’s definition of a
“small wireless facility” under 47 C.F.R. §
1.6002(l) is a regulatory classification that
subjects the application to special shot
clocks and limitations on aesthetic
regulations. The FCC does not mandate
that cities approve any small cell that
meets the definition. To the extent that
any regulation is not technically feasible,
the applicant may seek an exception
under Section E.11.
51 Verizon 20. Review and Approval Guidelines (WCF and SWF Design
Guidelines for the ROW Section C.3.e, p. 13).
The requirement in this Section that requires, for new poles
without a streetlight, antennas and all equipment not installed
underground be concealed and integrated into the overall design of
the pole (with no exterior equipment boxes or shrouds attached to
the pole), is unreasonable for SWFs. The onerous restrictions will
impair and impede Verizon’s ability to densify and enhance its
wireless network, and will result in an effective prohibition of
wireless services. The restrictions are also inconsistent with 47 CFR
§ 1.6002(l) and CPUC General Order 95 (as applicable). This Section
Staff disagrees. Federal law requires local
aesthetic regulations to be (1) reasonable
(i.e., technically feasible) and (2) published
in advance. The FCC’s definition of a
“small wireless facility” under 47 C.F.R. §
1.6002(l) is a regulatory classification that
subjects the application to special shot
clocks and limitations on aesthetic
regulations. The FCC does not mandate
that cities approve any small cell that
meets the definition. Moreover, Section
Dec. 14, 2021 Item #16 Page 180 of 252
# Commenter Comment Staff Response
also contradicts Public Utilities Code Section 7901 that grants
telephone corporations the right to place new poles in the right-of-
way. California Public Utilities Code Section 7901 grants telephone
corporations such as Verizon Wireless a statewide right to place
their equipment along any public right-of way, including new poles.
The regulations should be revised to state that the design of a new
pole without a streetlight may be consistent with the height, size,
and volume standards for SWFs in 47 CFR § 1.6002(l) and in CPUC
General Order 95 (as applicable).
7901 is a limited right and preserves local
zoning authority to the extent that the
facility would incommode the public’s use.
New poles in the right-of-way would
presumptively be out-of-character with
the City’s planned streets.
However, to the extent that any regulation
is not technically feasible, the applicant
may seek an exception under Section E.11.
52 Verizon 21. Review and Approval Guidelines (Application and Review
Guidelines WCFs Section E.1.b-c, p.16).
The requirements for an application to include a carrier’s map of
existing and proposed sites, and to describe the purpose of a WCF,
are not consistent with federal law and must be eliminated. This
Section violates Verizon’s rights under the TCA regarding the
requirement to submit maps and an explanation of the
communications services to be provided. (City of Auburn v. Qwest
Corp., 260 F.3d 1160, 1176 and 1178 (9th Cir. 2001) (city violated
the TCA by requiring maps and a description of services to be
provided; agencies do not have the authority to request
information regarding systems, plans or purposes for a WCF).)
Further, under the TCA, the City cannot require Verizon to submit
an explanation of the communications services being provided, or
otherwise attempt to control the technological and operational
aspects of wireless services. (See New York SMSA Ltd. Partnership v.
Town of Clarkstown 612 F.3d 97, 105-106 (2nd Cir. 2012) (local
requirements or preferences for certain or alternative technologies,
and local attempts to control the technological and operational
aspects of wireless services, violate the TCA).)
Staff disagrees. Auburn v. Qwest was
overruled by Sprint v. County of San Diego,
543 F.3d 571 (9th Cir. 2008). Moreover,
the City is not regulating the services to be
provided by requesting information on the
location and purpose of the application.
These issues are relevant for the applicant
to show that a more-preferred location or
design would not be technically feasible.
Dec. 14, 2021 Item #16 Page 181 of 252
# Commenter Comment Staff Response
These sections should be revised to eliminate requirements for
carriers to submit maps of existing and proposed sites, and to
describe the purpose of a WCF.
53 Verizon 22. Review and Approval Guidelines (Application and Review
Guidelines WCFs Section E.1.d, p.16).
The requirement for a RF report with cumulative analysis of “all
emitters in the vicinity” is vague, ambiguous and unworkable, and
must be eliminated or revised.
Neither Verizon nor any carrier will know about “all” potential
emitters of RF energy in the area around a facility. Further, the
“vicinity” requirement is not quantified and is therefore subject to
unreasonable or irrelevant application, especially as accepted
scientific standards identify that RF energy dissipates significantly
even over short distances.
This section should be revised to eliminate the requirement for
carriers to submit a RF report with cumulative analysis of “all
emitters in the vicinity,” and only require RF reports consistent with
FCC regulations.
Adopted. RF compliance reports shall be
required to demonstrate compliance with
47 C.F.R. § 1.1307(b)(5) to the extent that
there a cumulative emissions from other
FCC-licensed emitters.
54 Verizon 23. Review and Approval Guidelines (Application and Review
Guidelines SWFs Sections E.2.a-b, p.17).
These sections should be revised to eliminate the requirement to
explain the purpose or technical service objective, as well as a site
selection process, for a proposed SWF. Under the TCA, the City
cannot require Verizon to submit an explanation of the
communications services being provided, or otherwise attempt to
control the technological and operational aspects of wireless
services. (See New York SMSA Ltd. Partnership v. Town of
Clarkstown 612 F.3d 97, 105-106 (2nd Cir. 2012) (local
requirements or preferences for certain or alternative technologies,
and local attempts to control the technological and operational
aspects of wireless services, violate the TCA; see also City of Auburn
Staff disagrees. The City is not regulating
the services to be provided or requiring a
demonstration of a coverage cap by
requesting information on the location
and purpose of the application. These
issues are relevant for the applicant to
show that a more-preferred location or
design would not be technically feasible.
Dec. 14, 2021 Item #16 Page 182 of 252
# Commenter Comment Staff Response
v. Qwest Corp., 260 F.3d 1160, 1176 and 1178 (9th Cir. 2001) (city
violated the TCA by requiring maps and a description of services to
be provided; agencies do not have the authority to request
information regarding systems, plans or purposes for a facility).)
Further, in 2018 the FCC eliminated requirements that applicants
show a “coverage gap”-based analytical approach for SWF
applications and instead established a new national standard for
what constitutes effective prohibition of service under the Act. (See
FCC Small Cell Order, ¶¶ 9-10, 21, 37 and 40 and notes 87-88 and
94.)
The City cannot require Verizon Wireless to prove the necessity of
new small cells, which the FCC determined are needed to enhance
service and densify networks. The FCC also disfavored dated service
standards based on “coverage gaps” and the like (such as a
requirement to show technical service objectives or a description of
wireless services proposed here) (FCC Small Cell Order, ¶¶ 37- 40.)
Finally, in 2018, the FCC rejected requirements that “applicants …
show that the proposed facilities are the ‘least intrusive means’ for
filling a coverage gap.” (FCC Small Cell Order ¶40 and note 94.)
Accordingly, an application for a SWF is not required to comply
with Section E.2.b’s requirement for an alternative site analysis.
This regulation should therefore also be eliminated.
The regulations in these sections should be revised to eliminate the
need for SWFs to provide alternative site analyses, to show the
location is the “least intrusive” design or site, to provide coverage
maps, or to explain the purpose of the facility or to show technical
service objectives or a description of wireless services proposed .
55 Verizon 24. Review and Approval Guidelines (Application and Review
Guidelines SWFs Sections E.2.c, p.17).
Adopted. RF compliance reports shall be
required to demonstrate compliance with
Dec. 14, 2021 Item #16 Page 183 of 252
# Commenter Comment Staff Response
The requirement for a RF report with cumulative analysis of “all
emitters in the vicinity” is vague, ambiguous, and unworkable, and
must be eliminated or revised.
Neither Verizon nor any carrier will know about “all” potential
emitters of RF energy in the area around a facility. Further, the
“vicinity” requirement is not quantified and is therefore subject to
unreasonable or irrelevant application, especially as accepted
scientific standards identify that RF energy dissipates significantly
even over short distances.
This section should be revised to eliminate the requirement for
carriers to submit a RF report with cumulative analysis of “all
emitters in the vicinity,” and only require RF reports consistent with
FCC regulations.
47 C.F.R. § 1.1307(b)(5) to the extent that
there a cumulative emissions from other
FCC-licensed emitters.
56 Verizon 25. Review and Approval Guidelines (Application and Review
Guidelines Section E.5, pp.17-18).
This Section should add that the decision-maker findings shall also
consider applicable federal and state law, which may modify the
considerations listed compared to the City Code.
Adopted in part. An exception may be
granted under Section E.11.
57 Verizon 26. Review and Approval Guidelines (Application and Review
Guidelines Section E.6, p. 18).
This Section cannot require that an application to amend an
existing WCF permit document that the WCF maintains the
“smallest” or “most efficient” wireless antenna or equipment, and
the requirement must be removed as unworkable and inconsistent
with federal law.
Under the TCA, the City cannot require Verizon to submit an
explanation of the communications services being provided and
whether they are current technology, or otherwise attempt to
control the technological and operational aspects of wireless
services. (See New York SMSA Ltd. Partnership v. Town of
Staff disagrees. Federal law preserves local
zoning authority subject to specific
limitations. The City’s proposed aesthetic
regulations favor (but do not mandate)
particular locations, support structures,
small equipment and commonly used
concealment techniques. Moreover, the
reference to using the “most efficient”
design concerns whether collocation with
existing facilities or on an existing
structure would be technically feasible.
Collocating would not be required if it is
not technically feasible.
Dec. 14, 2021 Item #16 Page 184 of 252
# Commenter Comment Staff Response
Clarkstown 612 F.3d 97, 105-106 (2nd Cir. 2012) (local
requirements or preferences for certain or alternative technologies,
and local attempts to control the technological and operational
aspects of wireless services, violate the TCA).)
Also, the requirement in this Section to document a facility uses the
“smallest” or “most efficient” antennas and equipment should be
removed as it is vague and ambiguous, and without objective or
reasonable standards. Further, wireless carriers have different
network operations and objectives, and the “smallest” antennas
and equipment may be feasible to be used by one carrier but not
feasible to be used by another carrier.
The regulations in this section should be revised to remove the
requirement for a WCF to use or maintain the “smallest” or “most
efficient” wireless antenna or equipment.
58 Verizon 27. Review and Approval Guidelines (Application and Review
Guidelines Section E.9, p. 19).
This Section regarding appointments for in-person submittals of
applications must be applied in practice to allow timely,
reasonable, and flexible opportunities for submittal appointments.
Verizon would also like to recommend that the City consider an
online or email application process, especially in light of current
restrictions to diminish in person contact as imposed by state and
federal law with regards to the pandemic, with such requirements
constantly changing.
Staff disagrees. Application submittal
appointments are helpful workflow
management tools for the City to comply
with federal shot clocks. Regulations from
state or county public health departments
may impact in-person submittal
procedures in the future, but City
departments are currently open to the
public. Changes to the submittal
procedures based on public health
recommendations may be considered
should the need arise.
Dec. 14, 2021 Item #16 Page 185 of 252
Comment letter 1 from Irene Tsutsui plus attachments
From: Irene
Sent: Nov 8, 2021 4:43 PM
To: ,
Cc: , , , , , ,
Subject: CITY OF CARLSBAD Policy 64 Follow up on 4G/5G Smart Cell Antenna and Towers fire risk and
insurability
Dear Eric and Corey:
:
Thank you for hearing our concerns at the Zoom meeting on November 2nd regarding the City of
Carlsbad's updating public policy 64 covering 4G/5G smart cell antenna and tower installations.
Whereas a 1500 foot setback in residential neighborhoods and schools may pose complexity, the Front
Yard Rule is a simple, easy to understand and implement rule which would reduce the exposure to
potential harm Carlsbad residents would otherwise endure from unrestricted installations. Reducing
exposure is so important given the technical shortfalls expected of wireless infrastructure and the high
San Diego County/Carlsbad year round fire risk and concomitant issues.
The following is information I am sharing which emphasizes the fire risk and the need for telecoms to
provide proof of adequate insurance. What are the key issues and what makes Carlsbad particularly
vulnerable to the fire risk?
1. Substandard equipment and/or installations that lack the certification of having undergone rigorous
testing; safety monitoring is lacking that would guarantee safety as is done with other consumer
products. Lloyds of London will not insure any wireless devices or equipment taking the position it is the
"new asbestos."That begs the question who is going to pay the costs of damage from smart cell towers
catching fire or collapsing? Will the City assure residents such cost will be borne by the telecoms?
2. As I mentioned to you, the Precautionary Principle puts the burden of responsibiity on the telecoms.
Used in Europe, it has ensured greater safety. It is utilized by corporations in the USA when
environmental concerns are involved. It also includes active citizen input and participation. I will send
more information along with recommendations for testing at installation sites by the City as
recommended by the attorney Andrew Campanelli. He maintains that technical specifications on
applications are often inaccurately presented thus posing hazards to citizens. At the meeting Jay Varon
and I had with Jason Haber and Gary Barberi last year, the idea of forming a committee of several
Carlsbad citizens was posed; the recent historic ruling against the FCC along with the uncertainty of the
outcome of other lawsuits against the FCC magnifies the importance of engaging the community.
3. Carlsbad's complex terrain fuels fast-moving ("moved quickly") fires which described the 2014
Poinsettia fire.
The article with photo and video posted below (courtesy of Environmental Health Trust) depicts several
cell antenna fires along with a list of multiple fire incidents; it demonstrates that fires are to be expected
Dec. 14, 2021 Item #16 Page 186 of 252
until telecoms are forced to engineer safer equipment. It was reported elsewere that at least 75 fire
agencies including out of state agencies were deployed in the Poinsettia fire.
4. Tremendous liability and cost from equipment and faulty installations. The 2007 Malibu fire cost $60
million in settlements after three telecoms were held responsible for overloading utility poles. Southern
California Edison incurred a $37 million judgment. Natural fire hazards illustrate the magnitude of the
cost. The 2014 San Diego County fires cost $60 million in property damage and suppression efforts. The
Poinsettia fire cost $22.5 million and one loss of life.
5. Future factors such as worsening drought conditions and recent state legislation commands a forward
thinking approach. Carlsbad's TOP HAZARD under "Potential Hazard-Related Exposure/Loss" is fire which
dwarfs earthquakes and other hazards. Experts say fires in California now pose a year round hazard, a
condition that is expected to worsen.
https://urldefense.com/v3/__https://www.sandiegocounty.gov/content/dam/sdc/oes/emergency_man
agement/HazMit/2017/City-of-Carlsbad-HazMit-Section-5.pdf__;!!E_4xU6-vwMWK-
Q!66EjWXM46EJ2ckOVxUIZVUIYdPyZwWGzPMx99RROE9XZ173car0Yc_M4E7aQVwaAiRezT2M$ (see
chart)
SB9 which passed in California will allow multi-unit buildings on a single-family parcel thus increasing
density and human exposure to the hazards of 4G/5G Smart cell antenna and tower installations. Now is
the time to take steps to lessen the overall hazard exposure that will escalate with higher population
density.
SB9 The California H.O.M.E Act
https://urldefense.com/v3/__https://focus.senate.ca.gov/sb9__;!!E_4xU6-vwMWK-
Q!66EjWXM46EJ2ckOVxUIZVUIYdPyZwWGzPMx99RROE9XZ173car0Yc_M4E7aQVwaAFlbRvj8$
THREE ATTACHMENTS:
You may find useful key Malibu ordinance language (below my signature) addressing the fire risk (also
attached as 5G Malibu's Ordinance 484).
In the third attachment, (Sample Ordinance Language and Legal Letters) "Subsection 7 restates the
1,500-foot set-back rule for residences and schools, and then imposes other design requirements, such
as applicable codes, regulatory rules, prohibited interference with City communications systems,
lighting, aesthetics, specifics on undergrounding and above-ground equipment, signage, noise and
situations where the facility will largely provide coverage for outside-city areas. Finally, there are fire-
hazard requirements, such as coordination with and monitoring by the Fire Department."
"Subsection 8 authorizes and requires engagement of an outside expert (paid for by the applicant) to
review technical matters and for compliance with the ordinance’s strictures."
"Subsection 9 prescribes the conditions of approval that will attach to permits and apply throughout the
permit and facility operational life, subject to amendment. This restates some of the matters in prior
sections but addresses abandonment."
"Subsection 10 requires the applicant, operator and property owner (as appropriate) to fully indemnify
the City for all potential liabilities, including from operation and maintenance."
Dec. 14, 2021 Item #16 Page 187 of 252
Per the second attachment on insurability and personal accounts, please consider the firsthand accounts
of the challenges firemen faced on the ground in the Poinsettia fire; also consider the dire accounts of
residents forced to evacuate the last minute with little time to spare along with power outages for 3,000
residents. About 25,000 Carlsbad residents (myself included) received evacuation phone calls.
Personally I have received three separate evacuation calls over the last 25 years in North County and
have observed how fast a fire can spread. A spark or burning ember from a cell tower electrical fire
blown by winds to neighboring homes and slopes is my biggest worry aside from the radiation exposure.
Thank you for your gracious attention to our citizens' concern over the fire risk and related issues! Feel
free to contact me anytime if you have questions. I am glad to be of any assistance in gathering
information and sharing suggestions gleaned from 5G attorney input and other expert resources. .
Sincerely,
Irene Tsutsui (aka Hoffman)
2647 Gateway Road #295
Carlsbad, CA 92009
phone 760-602-0839 CELL 760-271-0919
Fire on Rooftop With Cell Antennas in Brooklyn New York Apr 19, 2021
https://urldefense.com/v3/__https://ehtrust.org/firecell-tower-brooklyn-new-york/__;!!E_4xU6-
vwMWK-Q!66EjWXM46EJ2ckOVxUIZVUIYdPyZwWGzPMx99RROE9XZ173car0Yc_M4E7aQVwaA1X5lLx8$
"A fire broke out on the roof of a Brooklyn New York apartment building...“According to some reports,
the fire was caused by an electrical malfunction of a cell tower on the roof of the building.”Local news
reports state that multiple firetrucks and dozens of firefighters arrived at the scene and quickly brought
the fire under control. .. More transmitting cell antennas in a community will increase the fire
danger/risk. 5G/4G wireless facilities bring industrial equipment with electrical equipment into
residential neighborhoods. Poles loaded with electrical equipment bring fire risks. Yet, telecom and the
power companies are largely unregulated with minimal oversight in regards to fire risk."
"Many fires have been started by cell antennas and from equipment on utility poles, some at schools.
Most notably, Malibu Canyon Fire started as the result of three telecoms overloading a utility pole and
“Southern California Edison Co. agreed Monday to pay $37 million to resolve concerns about three
overloaded utility poles that sparked the 2007 Malibu Canyon fire, a settlement that would bring the
total payout for the destructive fire to more than $60 million.”
*************
https://urldefense.com/v3/__https://www.naturalblaze.com/2021/04/5g-ai-may-day-or-mayday-liar-
liar-cell-tower-on-fire.html__;!!E_4xU6-vwMWK-
Q!66EjWXM46EJ2ckOVxUIZVUIYdPyZwWGzPMx99RROE9XZ173car0Yc_M4E7aQVwaAvQDURHg$
"What might have happened had the fire occurred in drought-ridden, fire prone California?As noted by
the Environmental Health Trust, “More transmitting cell antennas in a community will increase the fire
danger/risk. 5G/4G wireless facilities bring industrial equipment with electrical equipment into
Dec. 14, 2021 Item #16 Page 188 of 252
residential neighborhoods. Poles loaded with electrical equipment bring fire risks. Yet, telecom and the
power companies are largely unregulated with minimal oversight in regards to fire risk.”[vii].
***************
Malibu Ordinance 484 (see attachment for key language)
The City of Malibu is designated as a Very High Fire Hazard Severity Zone. The City was devastated by
major fires in 2007 and 2018 due to power pole failures. In the case of the 2007 fire, wireless
communications facilities contributed to the overburdened power pole. The 2018 Woolsey Fire, which
affected Malibu and other parts of Los Angeles County, consumed over 96,000 acres, destroyed at least
1,643 structures, killed three people, and prompted the evacuation of more than 295,000 people. It was
one of several fires in California that ignited on the same day. Malibu has still not recovered. The
2007 fire burned 3,836 acres, 36 vehicles and 14 structures, including Castle Kashan and the Malibu
Presbyterian Church, and damaged 19 other structures. It is essential that wireless communications
facilities be engineered to prevent fire and withstand fire events as much as possible, and at least in a
manner comparable to other commercial facilities with extensive, complicated electronics and wiring
and flammable, sometimes hazardous and toxic, materials on site.
•Policy 1.1.2: The City shall minimize the risk of loss from fire.
• Policy 1.1.3: The City shall reduce the amount of non-essential toxic and hazardous substances.
• Implementation Measure 2: Work with other agencies to ensure effective and efficient fire
suppression, prevention and rescue services.
• Implementation Measure 11: Develop guidelines and standards for all new and remodel
structures to utilize fire-resistant building materials and designs, and, if feasible, to be sited to
minimize fire hazards.
• Implementation Measure 19: Regulate the transport, storage and use of toxic and hazardous
materials.
• Policy 4.2: All new development shall be sized, designed and sited to minimize risks to life and
property from geologic, flood, and fire hazard.
• Policy 4.45: New development shall minimize risks to life and property from fire hazard
through:
b. Siting and designing development to avoid hazardous locations; and d. Use of appropriate building
materials and design features to insure the minimum amount of required fuel modification.
Dec. 14, 2021 Item #16 Page 189 of 252
Attachment 1 – Wireless Facility Insurability and Fire Risk
Submitted by Irene Tsutsui to City of Carlsbad
KEY CONCERNS OVER 4G/4G SMART CELL ANTENNA AND TOWER INSTALLATIONS
TELECOMS INSURABILITY & INSURANCE COVERAGE PERTINENT TO CARLSBAD’S FIRE RISK
The following are concerns as substantiated via the articles posted below.
1) The Poinsettia fire was a "fast-burning" ,,.."moved quickly" fire. Some citizens only had two and a half
minutes to evacuate. That puts the safety issue front and center impacting human survival.
2) The fast burning fire was fueled by unusually high winds for May, however, fire experts are warning
that California is now under a "year round risk" which will worsen as time goes by.
3) San Diego County comprises a mountainous terrain of gentle slopes and hills. It is ripe for wildfires
exacerbated by wind speeds and low humidity; On May 14 winds went from 22 mph (class 5) to 55 mph
(class 10) creating a "perfect storm."
"Devil winds" are exacerbated by San Diego's complex terrain which makes forecasting a complex
task. The fire marshal (Monty Kalin retired this year) told me over15 years ago that with respect to two
homeowner association communities adjacent to each other whose slopes I monitor annually for weed
abatement (about 50+ homes on slopes out of over several hundred homes), we have many "up slopes"
where wind travels faster than "down slopes." Both pose fire risks for different reasons. This is the
reason our HOAs embarked upon a massive cleanup project eradicating pampas grass and some
eucalyptus trees. I was dismayed when I traversed the slopes observing how unattended the slopes
were with overgrown trees, bushes and weeds. Monty and the City provided the financial means to
remove the pampas grass, a very tough plant to remove, and the landscaper removed many eucalyptus
trees. I make sure the slope weed abatement occurs at HOA expense late spring/early summer to clear
hazardous brush away at least 20 feet from our back yard fence line. See links below "Estimating
Winds..."Observing Fire Weather" differentiating slopes and wind speed comparing "Upslopes,
Downslopes, Up-Valleys and Down-Valleys." (see attachment "Downslope Windstorms of San Diego
County. Part I: A Case Study"
4) The wind and fire tripped power lines causing 3,000 to be without power. The concern here is the
effect on 4G/5G smart cell antenna and tower installations affected by winds, dust and
smoke/ember pollutants.
5) The May 2014 San Diego County wildfires were estimated to have caused at least $60 million (2014
USD) in damage.[3] Wikipedia. Carlsbad property damage is estimated at $22.5 (I have seen higher
numbers). The big concern is who is going to foot the damage cost if telecoms do not carry adequate
insurance for fire, pollution and property damage? The Omni Resort (where the Poinsettia fire
originated) was sued due to "negligent maintenance and operation of its property and equipment" as
well as for "failing to safeguard against the fire spreading into neighboring residential
Dec. 14, 2021 Item #16 Page 190 of 252
communities." The City of Carlsbad needs to protect itself by ensuring provisions are included in policy
64 to hold telecoms responsible to cover damages in the event of an antenna or tower fire or collapse.
6. The last link, "Summary of Potential Hazard-Related Exposure/Loss in Carlsbad" lists the fire hazard as
the TOP POTENTIAL HAZARD. It dwarfs everything else including earthquake!
Poinsettia Fire
https://en.wikipedia.org/wiki/Poinsettia_Fire
The Poinsettia Fire was the second most destructive of the May 2014 San Diego County wildfires. It
caused property damage estimated at $22.5 million, as well as the only reported fatality in the San
Diego County series of wildfires. As of July 10, 2014, the cause of the fire is listed as "undetermined",
which allows for further investigation if more information comes to light A lawsuit filed in October 2014,
alleges the resort was responsible for the fire due to "negligent maintenance and operation of its
property and equipment" as well as for "failing to safeguard against the fire spreading into neighboring
residential communities" once it had started.[13] The lawsuit has multiple plaintiffs, including
homeowners who lost their homes, businesses that were damaged as well as those who suffered
injuries in the fire.
Poinsettia Fire Destroys Homes in Carlsbad
https://www.nbcsandiego.com/news/local/brush-fire-carlsbad-palomar-airport-san-diego-cal-
fire/57586/
Cal Fire Battalion Chief Nick Schuler said the fire is not something crews normally see in June, July, in
August, not in May.“Not only were firefighters trying to engage the fire but doing their best to get
people out of their homes effectively and safely,” Schuler said.* See: Photos of Firestorm 2014 The
Windsor at Aviara Apartments, located near Ambrosia and Poinsettia lanes, caught fire later in the
afternoon.NBC 7 News crews arrived on scene just as Sound-Elkin -- a veterinary ultrasound practice --
erupted in flames. Helicopters had to do water drops on the structure because firefighters were having a
hard time attacking the fire from the ground.Carlsbad police officers said the Poinsettia Fire sparked
around 10:40 a.m. at Alicante and Poinsettia Lane and moved quickly.
Five years later, Carlsbad officials recall Poinsettia fire
https://thecoastnews.com/five-years-later-carlsbad-officials-recall-poinsettia-fire/
The San Marcos Fire Department responded, but then had to return to its city as another fire broke out
forcing those firefighters to respond to their own incident. Throughout the four days it took to
extinguish the fire, at least 75 agencies including ones from Utah and Mexico, assisted with the
Poinsettia Fire.
Wildfires scorch San Diego County: 'Mother Nature was not on our side'
https://edition.cnn.com/2014/05/15/us/san-diego-wildfire/
"On top of the drought, the Santa Ana winds have helped many of these fires race, challenging the
hundreds of firefighters on the ground and in the air. These are typical for October and November, but
Cal Fire Assistant Region Chief Thom Porter notes, "we've had this kind of wind ... every month this
year."
Dec. 14, 2021 Item #16 Page 191 of 252
"As a native San Diegan, I have never seen the Santa Ana winds -- also called 'the devil winds' -- in the
month of May," San Diego County Supervisor Dianne Jacob said.
Fire season in Southern California typically starts late in the summer and extends into fall. But
nowadays, as Jacob points out, "We have year-round fire risk."
Porter, from Cal Fire, notes that there's been no time to shut down over the past 12 months at least,
adding: "We have never gone out of what you would call fire season."
California Wildfire Season Is Stretching Year-Round
https://weather.com/safety/wildfires/news/california-fire-season-year-round-20140514
Carlsbad copes with fire’s aftermath
https://www.sandiegouniontribune.com/news/wildfire/sdut-carlsbad-fire-homes-thursday-2014may15-
htmlstory.html
“We had two-and-a-half minutes from the time that we got the call … for a mandatory evac to when the
flames were at our back door,” Gilmore said, adding that he left behind many items, like his wallet and
his laptop, that he would have grabbed if there were a few more minutes to spare.
“My son had a Jurassic Park collection that it took him five years to assemble and it was worth
thousands of dollars. I had a baseball card collection, a coin collection; we didn’t have time to get
anything. My hard drive with all my family photos — gone. We had time to get out with our lives, and
that was it,” he said.
Wildfires cut off power to thousands
https://www.sandiegouniontribune.com/sdut-power-outages-wildfires-2014may14-htmlstory.html
Estimating Winds for Fire Behavior
https://www.nwcg.gov/publications/pms437/weather/estimating-winds-for-fire-behavior
Observing Fire Weather (see Wind Observations and Estimates)
https://www.nwcg.gov/publications/pms437/weather/observing-fire-weather
1.1 City of Carlsbad
https://www.sandiegocounty.gov/content/dam/sdc/oes/emergency_management/HazMit/2017/City-
of-Carlsbad-HazMit-Section-5.pdf
NOTE: TOP HAZARD LISTED IS FIRE
Table 5.3-1 Summary of Potential Hazard-Related Exposure/Loss in Carlsbad
Wildfire / Structure Fire
Fire Regime II & IV
Dec. 14, 2021 Item #16 Page 192 of 252
Attachment 2 – Malibu Ordinance No. 484
https://www.malibucity.org/DocumentCenter/View/27969/Ordinance-No-484
Supplemental
Council Agenda Report
Date prepared: April 22, 2021 Meeting date: April 26, 2021
Subject: Second Reading and Adoption of Ordinance No. 484
B. The City of Malibu is designated as a Very High Fire Hazard Severity Zone. The City
was devastated by major fires in 2007 and 2018 due to power pole failures. In the case of the 2007 fire,
wireless communications facilities contributed to the overburdened power pole. The 2018 Woolsey Fire,
which affected Malibu and other parts of Los Angeles County, consumed over 96,000 acres, destroyed at
Dec. 14, 2021 Item #16 Page 193 of 252
least 1,643 structures, killed three people, and prompted the evacuation of more than 295,000 people.
It
was one of several fires in California that ignited on the same day. Malibu has still not recovered. The
2007 fire burned 3,836 acres, 36 vehicles and 14 structures, including Castle Kashan and the Malibu
Presbyterian Church, and damaged 19 other structures. It is essential that wireless communications
facilities be engineered to prevent fire and withstand fire events as much as possible, and at least in a
manner comparable to other commercial facilities with extensive, complicated electronics and wiring
and
flammable, sometimes hazardous and toxic, materials on site.
SECTION 3. Zoning Text Amendment and Findings.
A. The subject ZTA is consistent with the objectives, policies, general land uses and
programs specified in the General Plan. The proposed amendment serves to enhance the Malibu
General
Plan Mission Statement, protect public safety and preserve Malibu’s natural and cultural resources. The
following General Plan policies and implementation measures would be advanced as part of this
Ordinance:
• Policy 1.1.2: The City shall minimize the risk of loss from fire.
Ordinance No. 484
Page 5 of 24
____________________
• Policy 1.1.3: The City shall reduce the amount of non-essential toxic and hazardous
substances.
• Implementation Measure 2: Work with other agencies to ensure effective and efficient fire
suppression, prevention and rescue services.
• Implementation Measure 11: Develop guidelines and standards for all new and remodel
structures to utilize fire-resistant building materials and designs, and, if feasible, to be sited to
minimize fire hazards.
• Implementation Measure 19: Regulate the transport, storage and use of toxic and hazardous
materials.
Attachment 3 – Malibu Sample Ordinance Language and Legal Letters
5G Sample Ordinance Language and Legal Letters
Malibu Ordinance Re-Write Summary (8-23-20 )***
Malibu Wireless Code (8-21-20)
Dec. 14, 2021 Item #16 Page 194 of 252
Response to Jonathan Kramer Memo (8-23-20)
Appeal Mark Pollack City of Newport Beach Brief 8-25-20
***
MEMORANDUM
From: W. Scott McCollough
To: Malibu City Council Members
Date: August 23, 2020
Subject: Summary and Explanation; Malibu Wireless Code Chapter 17.46 Replacement Concerning
Wireless Antennas and Related Facilities
The attached draft ordinance accomplishes a complete re-working of the current Malibu ordinance
relating to wireless facilities placement. Some current substance was retained, but it appears in context
with the new language and wording.1 The great preponderance of the wording, however, is basically
new.
Explanation for Section C (***see Subsections 6 (1500 ft setback) and 7 (fire hazard)***)
Section C provides the general requirements for all facilities related to personal wireless service and the
slightly broader class of “wireless facilities” covered by the Spectrum Act’s “minor modifications”
provisions.2
2 As noted, however, Section F in some instances departs from the Section C general rules insofar as is
necessary to implement federal law.
3 “Significant gap in coverage” and “least intrusive means” are crucial terms of art that are repeatedly
applied throughout the personal wireless service portions of the ordinance. They are defined in Section
O, and are further discussed in the next main portion of this memo.
4 This ordinance does not set the fees. Instead it contemplates the City will establish appropriate fees
and levels by resolution, presumably based on the City’s reasonable costs as required by the FCC’s
recently-affirmed order on that subject.
Subsections 1 and 2 list what must be done and obtained prior to any installation depending on
application type.
Subsection 3 and 4 delegate certain functions – here determination of completeness and compliance –
to the City of Malibu Community Development Director or its designee (“director”).
Subsection 4 also requires the Planning Commission (“commission”) to find (at an appropriate point)
whether the facility is required to “close a significant gap in coverage” and if so whether the proposed
antenna or facility is “the least intrusive means to do so.”3
Subsection 5 has seminal procedural and substantive content requirements for all applications, absent
an express exception elsewhere. Among these are certain binding representations and disclosures and
some substantive obligations like a master plan, siting analysis, noise studies, automated monitoring.
There is also an application fee.4
Subsection 6 sets out the City’s preferred zones and locations for facility placement. The general and
primary preference is for placement in an existing site in a commercial area. If that is not feasible then
the second choice is for public facilities or recreation zones, although those are disfavored. The last
option is and must be placement in residential areas or near schools. Even so, placement within 1,500
feet of a residence or school is prohibited unless the applicant can demonstrate and the
director/commission finds that is the only location that will close a significant gap, is the least intrusive
means to do so and placement in that location best minimizes adverse impacts. This and other parts of
Dec. 14, 2021 Item #16 Page 195 of 252
the ordinance contemplate that the director and/or commission will design basic forms that incorporate
the content requirements and allow them to make fairly quick determinations whether the application
is complete, compliant and proper for further processing. This is necessary since federal law imposes
small windows for non-compliance determinations as part of the “shot clock” process.
Subsection 7 restates the 1,500-foot set-back rule for residences and schools, and then imposes other
design requirements, such as applicable codes, regulatory rules, prohibited interference with City
communications systems, lighting, aesthetics, specifics on undergrounding and above-ground
equipment, signage, noise and situations where the facility will largely provide coverage for outside-city
areas. Finally, there are fire-hazard requirements, such as coordination with and monitoring by the Fire
Department.
Subsection 8 authorizes and requires engagement of an outside expert (paid for by the applicant) to
review technical matters and for compliance with the ordinance’s strictures.
Subsection 9 prescribes the conditions of approval that will attach to permits and apply throughout the
permit and facility operational life, subject to amendment. This restates some of the matters in prior
sections but addresses abandonment.
Subsection 10 requires the applicant, operator and property owner (as appropriate) to fully indemnify
the City for all potential liabilities, including from operation and maintenance.
Dec. 14, 2021 Item #16 Page 196 of 252
Irene Tsutsui Comment Letter 2 plus attachments
From: Irene <irenegdnight@earthlink.net>
Sent: Sunday, November 21, 2021 6:51 PM
To: Corey Funk <Corey.Funk@carlsbadca.gov>
Subject: CARLSBAD POLICY 64 PUBLIC COMMENTS (SUBMITTED BY IRENE TSUTSUI)
Dear Corey:
I may be submitting additional comments tomorrow but wanted to get the bulk of my comments to you
ASAP.
Thank you for inviting comments from the public.
I would appreciate an acknowledgement that you received my comments with attachments.
Irene Tsutsui
Carlsbad Constituent
CAUTION: Do not open attachments or click on links unless you recognize the sender and know the
content is safe.
Attachments below
Dec. 14, 2021 Item #16 Page 197 of 252
Comments re Policy 64 submitted by Irene Tsutsui, Carlsbad constituent
November 21, 2021
To Planning Dept
Due to my huge concern about hazards especially electrical fires emanating from small cell wireless
equipment, I have suggested some verbage for Policy 64 to protect the city and citizens against damages
and costs. I have posted suggested modifications with reference links. The city makes it clear what it
cannot do vis-a-vis its obligations to the telecoms, however, it falls short in ensuring that the city and its
citizens are protected against hazards. Thus my focus is on these areas: Insurance, Indemnification,
Notices, Prohibited areas (such as ridgelines and slopes), the front yard rule which is used in Elks Grove,
Upgrades and keeping technology current, Compliance with the law, Annual Recertification. The
Precautionary Principle holds the telecoms accountable and endeavors to prevent the cost of hazards
such as electrical fires and collapses or errors in RF emissions readings from being borne by the city or its
citizens. An attorney of Andrew Campanelli’s multi-decades long experience drafting city ordinances
could help with specifics since he is aware of current pending legal cases and he understands the
complexities. My comments follow his recommended approach, and I included language from expert
sources codifying how a city can protect itself and its citizens’ health and welfare.
STATING THE CITY’S OVERALL INTENT: (suggest adding it on page 1 of Policy 64 as a fourth paragraph
right before the Policy’s stated purpose.
Add:
"The City ensures WCF placement in a way that does not 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, electrical fires or other related adverse events."
(Please add additional important language similar to Malibu’s statement)
https://www.malibucity.org/DocumentCenter/View/27969/Ordinance-No-484
“Carlsbad’s Poinsettia fire in May 2014 due in part to high winds accelerating the spread of fire
throughout hills and slopes makes it essential that wireless communication facilities be engineered to
prevent fire and withstand fire events as much as possible. Precautionary measures should be taken in
a manner comparable to other commercial
facilities with extensive, complicated electronics and wiring and flammable, sometimes
hazardous and toxic, materials on site.”
Policy 64 Item E. Application and Review Guidelines (Pages 16 through 20)
INSURANCE AND INDEMNIFICATION, California Coastal Commission and NEPA permits
Application and Review Guidelines (pages 16 through 20)
(https://scientists4wiredtech.com/malibu Items 16, 17, 18 and 19)
Add as item 17:
"Insurance.The applicant shall maintain current at all times liability and property insurance for each
small cell installation in the Public Right Way. Prior to the issuance of a personal wireless service
related permit, the applicant shall pay for and provide a copy of a policy of General Liability Insurance
issued by an “A” rated Insurance company and cover the named applicant and each operator of an
antenna if different than the applicant. Each Such policy shall be a claims made policy, listing the
applicant as a primary insured, and the City as an additional insured, in the minimum amount of
$2,000,000 / $25,000,000. The policy shall not have a pollution or other exclusion which excludes
injuries or damages from EMF/RF exposures. A true and correct copy of the policy of insurance shall
constitute proof of insurance required by this Subsection.”
Dec. 14, 2021 Item #16 Page 198 of 252
Encinitas also has an extensive section on insurance:
https://ed84ae68-328e-42f4-847a-
66fb863ac9df.filesusr.com/ugd/2cea04_953f1b48d3164fd380211040867b2e5a.pdf P22
Add as item18
“Indemnification.Prior to issuance of a personal wireless service related permit, to the fullest extent
permitted by law, the Applicant and/or any Licensee under any Master License Agreement, and any
successors and assigns, shall defend, indemnify and hold harmless City, its employees, agents and
officials, from and against any liability, claims, suits, actions, arbitration proceedings, regulatory
proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including, but
not limited to, actual attorney’s fees, litigation expenses, and court costs of any kind, without restriction
or limitation,incurred in relation to, as a consequence of, arising out of, or in any way attributable to,
actually, allegedly or implied, in whole or in part, related to the wireless facility, the issuance of any
permit or entitlement in connection therewith and the operation of the facility thereafter. The applicant
shall pay such obligations as they are incurred by City, its employees, agents and officials, and in the
event of any claim or lawsuit,shall submit a deposit in such amount as the City reasonably determines
necessary to protect the City from exposure to fees, costs or liability with respect to such claim or
lawsuit. If the applicant or operator is a subsidiary of a parent corporation the parent corporation shall
also bind itself to the indemnification requirement and amount.”
Add if applicable:
“Prior to the issuance of a permit, the applicant shall obtain a Coastal Zone permit fromthe California
Coastal Commission or its designated agent, if the placement oft he wireless service equipment is
intended to occur in a zone requiring such permit.”
“Prior to the issuance of a permit, the applicant shall establish and prove it has complied with NEPA, has
completed the FCC’s NEPA checklist and to the extent required has done a NEPA environmental analysis
and provided the results of that analysis to the FCC. If exemption is claimed, applicant must state the
basis for such exemption and provide proof, including all supporting documents that such exempt
installation meets prescribed requirements.”
Policy 64 Page 20
Application and Review Guidelines
(Malibu ord477 U page 10 of 16)
http://www.keepcellantennasawayfromourelkgrovehomes.org/cell-antenna-policies/malibu
Malibu-ord-unsigned-477U
(http://www.keepcellantennasawayfromourelkgrovehomes.org/wp-content/uploads/2020/12/Malibu-
ord-unsigned-477U.pdf)
Item E Add as item 19
Public Notice:
(1) Within seven (7) calendar days after an application is submitted to the
City, the applicant shall: (1) post notice at the proposed project site in a
location near to and visible from the ROW and (2) provide the City with
Dec. 14, 2021 Item #16 Page 199 of 252
evidence that such notice has been posted. The applicant shall maintain
and replace the posted notice as necessary during the entire application
review process until the Director acts on the application and all appeals
have been exhausted. The posted notice shall be composed from durable
quality and weather-resistant materials that will not deteriorate under
normal circumstances for at least 180 calendar days. The posted notice
shall be at minimum 17 inches wide by 11 inches tall. The posted notice
shall not be placed in any location where it would obstruct travel or
visibility for vehicles, bicycles, pedestrians or other users in the ROW.
The City encourages applicants to consult with the Planning Department
on placement locations to avoid any potential hazards.
Public Notice
(2) Within five (5) business days from the date on which an application is
determined to be complete, the Director shall notify in writing of the filing
of the application property owners and residents of all property within a
one thousand(1,000) foot radius of the proposed project, but in no event
fewer than the owners and occupants of ten (10) developed properties. The
purpose ofthe notice is to inform the surrounding property owners and
residents oft he filing of the application and provide an opportunity for
comment on the application prior to the Director’s decision. The notice
shall describe the request, provide a map showing the specific location of
the proposed project, describe the review process and time frames, indicate
how to contact the applicant and case planner assigned to the application,
and the City-assigned application identifier.
Suggested verbage similar to Encinitas ord re fire issue:
d84ae68-328e-42f4-847a
6fb863ac9df.filesusr.com/ugd/2cea04_953f1b48d3164fd380211040867b2e5a.pdf (P12)
Add as item 20
g) Fire Department Review. After submittal by the applicant, the Director shall transmit the entire
application packet to the Fire Prevention Division. The Fire Chief shall review the application for
compliance with objective health and safety standards related to fire hazards, including but not limited
to all applicable provisions in Title 10 of the Encinitas Municipal Code. The Fire Chief shall inform the
Director in writing of its conclusions and any recommended conditions for public health and safety.
Policy 64page 7
Item A Location Guidelines (For Placement of WCFs (including SWFs)
Add item 6
Fire Risk:
“No WCF should be installed on or near a ridgeline or slope abutting a chapparal populated area.”
Policy 64 Page 7
Discouraged Locations
Section A 2:
Add item g “Near or on a ridgeline or slope abutting a chaparral populated area. See item 6.”
Policy 64 Page 18
Dec. 14, 2021 Item #16 Page 200 of 252
Application and Review Guidelines
Item E 4.5
Add item i “Proximity to a ridgeline or slope abutting a chaparral populated area. See item 6”
************************************
For reference see “Prohibited Locations” MALIBU https://scientists4wiredtech.com/malibu
Item D 1 (b)
D. Standards for Personal Wireless Service Facilities Not Located Within a Public Right-of-Way.
b) Prohibited Locations. No personal wireless service facility shall be established in the locations
described in subparagraphs (i), (ii) and (iii)herein.
(i) Ridgelines.No personal wireless service facility shall be placed on or near a ridgeline.
(ii)Residential Zones.No personal wireless service facility shall be placed within a residential zone,
including areas set aside for open space, parks or playgrounds.
(iii)Open Space.No personal wireless service facility shall be placed within an open space zone or
park. A personal wireless service facility is not and shall not be deemed a"public utility" as that term is
otherwise defined and understood in the Malibu Municipal Code regarding development in such open
space zones.
Sections 3 and 4 mention“minimizing risk of loss” and “minimizing risks to life and property from fire
hazard.
https://www.malibucity.org/DocumentCenter/View/27969/Ordinance-No-484
(Elk Grove) City of EG Ordinance 19-2019
http://www.keepcellantennasawayfromourelkgrovehomes.org/wp-content/uploads/2019/09/City-of-
EG-Ordinance-19-2019.pdf Page 13
See EG ord items A 6 b, 8 b and item C 3 for FRONT YARD RULE (discussed at Zoom meeting11/2/21 with
Eric Lardy, Corey Funk, Mark Graham and Carlsbad residents)
Policy 64 Page 8
D Design Guidelines
Suggestions on where to insert the language:
Add Elk Grove 6 b verbage to Policy 64 Page 8 item 5 Setbacks
Add Elk Grove 8 b and C3 verbage to Policy 64 Page 8 item 6 Building or Structure Mounted WCFs and
SWFs
23.94.050 Development standards. (Elk Grove ord verbage)
A. General Development Standards. Unless otherwise exempt pursuant to EGMC
Section 23.94.040,Exemptions, or as otherwise provided in an agreement approved by
the Elk Grove City Council pursuant to EGMC Section 23.94.035. Small Cell Wireless
Communications Facilities, the following general development standards shall apply to all
wireless communications facilities:
1. All wireless communications facilities shall comply with all applicable
requirements of the current uniform codes as adopted by the City and shall be
consistent with the General Plan and this title, as well as other standards and
guidelines adopted by the City.
•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
Dec. 14, 2021 Item #16 Page 201 of 252
** ** **
** ** **
6. In a residential zoning district, the following development standards shall apply,
unless the applicant can demonstrate with substantial evidence satisfactory to the
approving authority that such siting limitation will materially inhibit personal
wireless service as to a particular small cell wireless communication facility.
a. No small cell wireless communication facility shall be placed within five hundred
(500' O") feet of another small cell wireless communications facility.
b. No small cell wireless communication facility shall be located
immediately adjacent to, nor immediately across the street from,a front yard
of any residential dwelling.
c. The cumulative total of all associated equipment from all wireless
communications providers. including antennas, for a single facility or
property shall not exceed twenty-eight (28) cubic feet in volume.
6-7._At least ten (1 O' O") feet of horizontal clearance shall be maintained between
any part of the antenna and any power lines unless the antenna is installed to be
an integral part of a utility tower or facility.
7-8._ Development Standards for Antennas(Excluding Amateur Radio Antennas).
Unless otherwise exempt pursuant to EGMC Section 23.94.040, Exemptions, the
following development standards shall apply to receive-only antennas (ground and
building-mounted), parabolic antennas, and satellite earth stations as defined
in this section:
a. Maximum Number. One (1) wireless facility per parcel, unless the
applicant can demonstrate the service need for additional antenna.
b. Antenna Location. Parabolic antenna and satellite earth stations shall be
ground-mounted in residential zoning districts. In all nonresidential zoning
districts, the preference is for building-mounted antennas. No antenna shall
be located in the required front or street side yard of any parcel unless
entirely screened from pedestrian view of the abutting street rights-of-way
(excluding alleys). In all zoning districts, ground-mounted antennas shall be
situated as close to the ground as possible to reduce visual impact without
compromising their function and all portions of the structure/antenna shall
be set back a minimum of five (5' O")feet from any property line.
c. Height Limit. The height limit for ground-mounted antennas is six (6' O")
feet. …….
** ** **
** ** **
C. Development Standards for Towers. The following development standards shall apply
to towers (including co-location facilities) as defined in EGMC Section 23.94.020,
Definitions:
1. Site Design. All facilities (including related equipment) shall be designed to
minimize the visual impact to the greatest extent feasible, considering
technological requirements, by means of placement, screening, and camouflage,
to be compatible with existing architectural elements, landscape elements, and
other site characteristics. The applicant shall use the smallest and least visible
antennas possible to accomplish the owner/operator's coverage objective. A visual
Dec. 14, 2021 Item #16 Page 202 of 252
impact analysis is required to demonstrate how the proposed facility will appear
from public rights-of-way (including public trails).
2. Safety Design. All facilities shall be designed so as to be resistant to and
minimize opportunities for unauthorized access, climbing, vandalism, graffiti, and
other conditions which would result in hazardous conditions, visual blight, or
attractive nuisances.
3. Location. Towers shall not be located in any required front or street side yard in
any zoning district. The setback distance from any abutting street right-of-way,
residential property line, or public trail shall be equal to the height of the facility
(tower and related equipment). Otherwise, the minimum setback distance from all
other property lines shall be at least equal to twenty(20%) percent of the height of
the tower. Existing towers may be allowed to increase the height without requiring
the tower to be relocated as part of the conditional use permit approval, provided
the overall maximum height of the tower does not exceed the height limit listed in
subsection (C)(4) of this section, unless an exception is approved by the
designated approving authority.
4. Height Limit. The height limit for towers
** ** **
** ** **
Policy 64Page 15 In order to ensure a non-biased, hands off objective certification that does not favor
either the site developer or city, the following added verbage is recommended:
Performance Guidelines
Item D 5
Add word “independent”(radio frequency engineer) and “this type of” (facility) line 10 through 12
“If the the city planner or engineering manager finds good cause to believe that the facility is not in
compliance with any laws applicable to human exposure to RF emissions, the city planner or engineering
manager may require the permittee to submit a written report certified by a qualified,
independent radio frequency engineer familiar with this type of facility that certifies that the facility is
in compliance with all such laws.“
Policy 64 Page 15-16
Item D Add verbage to item D 5 or create new item D 7 (addresses technology and safety upgrades)
(Add verbage) https://scientists4wiredtech.com/malibu items 24 and 25
COMPLIANCE WITH APPLICABLE LAW
Permit,review, renewal and revocation procedure. The City finds that the technology associated with
telecommunications equipment is subject to rapid changes and upgrades as a result of industry
competition and customer demands, and anticipates that telecommunications antennas and related
equipment with reduced visual impacts will be available from time to time with comparable or improved
coverage and capacity capabilities. The City further finds that it is in the interest of the public health,
safety, and welfare that telecommunications providers be required to replace older facilities with newer
equipment of equal or greater capabilities and reduced visual impacts as technological improvements
become available. Therefore, any modifications requested to an existing facility for which a permit
issued pursuant to this Chapter authorizing establishment of a wireless facility shall permit the city
planner or engineering manager to review the provider’s existing facility to determine whether requiring
Dec. 14, 2021 Item #16 Page 203 of 252
newer equipment or applying new screening techniques that reduce visual impacts is appropriate if
technically feasible.
At any time,the city planner or engineering manager may initiate proceedings to revoke a permit issued
pursuant to this Chapter. Grounds for revocation shall be limited to a finding that the owner or operator
has abandoned the facility, the facility is no longer in compliance with either the general requirements
or design standards of this Title, the conditions of approval and the owner or operator has failed to bring
the facility into compliance within ninety (90) days after a notice has been sent by the director requiring
the facility to be brought into compliance, the facility is no longer in compliance with applicable FCC or
FAA regulations, the facility has not been upgraded to reduce or minimize its impact to the extent
reasonably permitted by the technology available at the time of any requested modifications, or if the
city planner or engineering manager determines that revocation would be in the best interest of the
public health, safety, or welfare, including circumstances like fire hazards, transitional areas or view
corridors.
ANNUAL RECERTIFICATION
It is important that telecoms know their smart cell wireless equipment and installations will be tested
on a regular basis so that they will be encouraged to test their own equipment before installing them,
and they are incentivized to install safe, up to date, reliable equipment in such a way that ensures
satisfactory quality and performance. Currently there is no regulatory agency or board testing or
monitoring such installations and there is no certification process; thus I suggest the following language
be added to Policy 64 as a precautionary measure of protection to the city and its citizens to discourage
failures and hazards.
MODEL WIRELESS TELECOMMUNICATIONS ORDINANCE
for Siting of "Small Cell" Telecommunication Infrastructure
https://wisconsinsafetech.files.wordpress.com/2020/05/5g-model-telecom-ordinance-by-americans-
for-responsible-tech-1.pdf (
Page 7
Policy 64 Page20
Add a new section Page 20 (before “SEVERABILITY”)
“F. Annual Recertification “
* The city shall have the right to employ a qualified, independent radio frequency engineer to conduct
an annual random and unannounced test of the Permittee’s small cell wireless installations located
within the city to certify their compliance with an FCC radio frequency emission limits as they pertain to
exposure to the general public. The reasonable cost of such tests shall be paid by the Permittee.
* In the event that such independent tests reveal that any small cell installation or installations owned
or operated by Permittee or its Lessees, singularly or in the aggregate, is emitting RF radiation in excess
of FCC exposure guidelines as they pertain to the general public, the city shall notify the Permittee and
all residents living within 1500 feet of the small cell installation(s) of the violation, and the Permittee
shall have forty-eight(48) hours to bring the small cell installation(s) into compliance. Failure to bring
the small cell installation(s) into compliance shall result in the forfeiture of all or part of the Compliance
Bond, and the city shall have the right to require the removal of such installation(s) as the city in its sole
discretion may determine is in the public interest.
Dec. 14, 2021 Item #16 Page 204 of 252
* Any small cell wireless installation which is not removed within 30 days after being listed as no longer
in use in the annual recertification affidavit shall be subject to a fine of $100/day until such installation is
removed.
* Where such annual recertification has not been properly or timely submitted, or equipment no longer
in use has not been removed within the required30 day period, no further applications for small cell
wireless installations will be accepted by the city until such time as the annual recertification has been
submitted and all fees and fines paid.
References
https://scientists4wiredtech.com/malibu/ Items 16, 17, 18 and 19)
(Malibu ord477 U page 10 of 16)
http://www.keepcellantennasawayfromourelkgrovehomes.org/cell-antenna-policies/malibu
Malibu-ord-unsigned-477U
Download (http://www.keepcellantennasawayfromourelkgrovehomes.org/wp-
content/uploads/2020/12/Malibu-ord-unsigned-477U.pdf)
https://www.malibucity.org/DocumentCenter/View/27969/Ordinance-No-484
(Elk Grove) City of EG Ordinance 19-2019
http://www.keepcellantennasawayfromourelkgrovehomes.org/wp-content/uploads/2019/09/City-of-
EG-Ordinance-19-2019.pdf Page 13
https://scientists4wiredtech.com/malibu
https://wisconsinsafetech.files.wordpress.com/2020/05/5g-model-telecom-ordinance-by-americans-
for-responsible-tech-1.pdf
Page 7
https://ed84ae68-328e-42f4-847a-
66fb863ac9df.filesusr.com/ugd/2cea04_953f1b48d3164fd380211040867b2e5a.pdf PP 12 & 22
https://stop5ginternational.org/checklist-for-municipal-codes-addressing-small-cell-installations/
Dec. 14, 2021 Item #16 Page 205 of 252
ART 1-21
Checklist for Municipal Codes
Addressing Small Cell Installa9ons
___ The code requires applicants to document possession of liability insurance
which does not exclude health claims due to radiofrequency (RF) radia9on
exposure.
___ The code requires the applicant to document significant effort to place
antennas in non-residen9al areas, and away from schools and daycare centers.
––– The code requires applicant to provide to all homeowners within 500 feet of
the proposed installa9on no9fica9on by cer9fied mail.
___ The code requires the applicant to document a significant gap in service
which will be remedied by the proposed small cell installa9on.
___ The code requires the applicant to post conspicuous signs of pending
applica9ons at all proposed sites.
___ The code requires that RF radia9on emission limits apply to the aggregate
emissions of all co-located equipment.
___ The code requires applicants to cer9fy that all small cell installa9ons will
comply with provisions of the Americans with Disabili9es Act.
––– The code permits the municipality to conduct random, unannounced RFR
emission tes9ng of any small cell installa9on at the expense of the operator, and
provides for substan9al penal9es for viola9ons.
___ The code requires applica9ons and permits for all small cell antennas
including strand-mounted antennas.
184 Main Sti-eet • Port Washington • ew YOl'k • 516.8 3.0887 · www.AmericansForResponsibleTech.org
Dec. 14, 2021 Item #16 Page 206 of 252
Irene Tsutsui comment letter 3 plus attachment
Dear Corey:
As a follow up to my concerns and suggestions submitted yesterday (attached), please consider the
following four topics regarding the revision of Policy 64:
1) My concern over the fire risk in smart cell wireless facility installations is heightened by Susan Foster's
technical description of the risk inherent in the smart meter component of smart cell towers as well as
the surge protection and on/off process triggering fire issues. Please review her discussing the risks in
the letter she wrote to the Malibu mayor and city council.
https://urldefense.com/v3/__https://www.activistpost.com/2020/09/firefighters-testimony-on-cell-
towers-and-5g-is-not-favorable-california.html__;!!E_4xU6-vwMWK-Q!_v9-tytMEjoPVutFQFVi-
zJcXam7PeTycnVOmuM2loFKpKpHrCiFDgCjtBtjrS1-kfOciLg$
If she is correct in her assessment that there has been no substantive change as far as correcting the
problems, that should compel Carlsbad's planning department to ensure annual inspections of wireless
facilities take place, and upgrades are made to eliminate the threat of fires as Ms. Foster describes. The
lack of safety monitoring of smart cell wireless facilities establishes the need for the city to conduct
regular inspections by a qualified, independent, RF engineer who can identify problems of the kind
described by Ms. Foster. Telecoms or site developers would bear the cost of needed corrections and
upgrades. The Annual Recertification which I suggested in my comments sent yesterday (attached)
would give the city the ability to effect such corrections and upgrades. Without them you are left with a
ticking time bomb. The inspections should apply to requiring upgrades of fire retardant materials being
used in equipment and installations. Consultation with Carlsbad's and San Diego County's fire
departments as to safe materials and installation methods could add a measure of safety as well.
2) The uncertainty of judicial outcomes and unsettled science (although many thousands of peer
reviewed studies have shown that harmful EMF/RF radiation exists) in addition to the fire risk factor
makes a compelling argument to apply the Precautionary Principle to Carlsbad's Policy 64.
THE PRECAUTIONARY PRINCIPLE IN ACTION
A HANDBOOK
https://urldefense.com/v3/__https://calepa.ca.gov/wp-content/uploads/sites/6/2016/10/EnvJustice-
Documents-2003yr-Appendices-AppendixI.pdf__;!!E_4xU6-vwMWK-Q!_v9-tytMEjoPVutFQFVi-
zJcXam7PeTycnVOmuM2loFKpKpHrCiFDgCjtBtjrS1-yjUG6wM$
What is the Precautionary Principle? Better Safe Than Sorry
https://urldefense.com/v3/__https://www.shieldyourbody.com/the-precautionary-
principle__;!!E_4xU6-vwMWK-Q!_v9-tytMEjoPVutFQFVi-
zJcXam7PeTycnVOmuM2loFKpKpHrCiFDgCjtBtjrS1-FT7uPfQ$
Dec. 14, 2021 Item #16 Page 207 of 252
Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be
used as a reason for postponing cost-effective measures to prevent environmental degradation.
The precautionary principle is defined by these key elements:
* Those in authority must anticipate harm before a harmful activity occurs.
* It is the responsibility of those doing an activity to show that the activity will not result in significant
harm.
* Those in authority must act to introduce cost-effective control measures to prevent or minimize harm
resulting from the activity, even in the absence of scientific certainty.
* The need for control measures increases with the degree of uncertainty and level of possible harm
resulting from the activity.
The Precautionary Principle is an environmental policy designed to protect citizens from potentially
adverse environmental influences, in the face of incomplete information about the risks these influences
present. Per the principle, the estimated costs of immediate action must be compared with the
estimated potential cost of inaction. If the potential cost of inaction is plausible, significant and
irreversible, we should act.
3) A recent court ruling in favor of Anura Lawson, a teacher in a disability case, lends greater credibility
to the harmful effects of radiation emanating from smart cell wireless facilities. Like the recent ruling
against the FCC, this is a key ruling. The fact that such a ruling encompasses a broader scope
perspective than would an ADA case, makes it an even more compelling argument that harmful
radiation causes injury thus there is a vital need for the city to make its best effort in protecting citizens
against such radiation.
JML Law Wins Appeal in 'Unprecedented' Disability Case Against LAUSD For Failure to Accommodate
Teacher With Electromagnetic Hypersensitivity
CaseJML Law wins appeal before CA Court of Appeal in ‘unprecedented’ disability case against LAUSD.
Brown v. LAUSD (Appeal No. B294240) establishes that symptoms of ‘electromagnetic hypersensitivity’
could be deemed a ‘physical disability’ under the California Fair Employment and Housing Act (“FEHA”),
which is broader in scope than the ADA. The complete published opinion by the Court
For) more information, please visit
https://urldefense.com/v3/__http://www.jmllaw.com__;!!E_4xU6-vwMWK-Q!_v9-tytMEjoPVutFQFVi-
zJcXam7PeTycnVOmuM2loFKpKpHrCiFDgCjtBtjrS1-BCwQO1k$
https://urldefense.com/v3/__https://finance.yahoo.com/news/jml-law-wins-appeal-unprecedented-
161500982.html__;!!E_4xU6-vwMWK-Q!_v9-tytMEjoPVutFQFVi-
zJcXam7PeTycnVOmuM2loFKpKpHrCiFDgCjtBtjrS1-uo6NYVc$
Dec. 14, 2021 Item #16 Page 208 of 252
4) On January 21, 2021 I submitted petitions from 150 to 200 citizens (I retained copies of most of the
signed petitions) who called for a moratorium on smart cell antennas and towers. The following is the
concluding paragraph of the petition (on file with the City Clerk).
"Other communities in CA have developed more detailed and stringent city ordinances to protect
property values, monitor cell phone tower rollouts/EMF emissions and address health concerns.
Actively investigating those options so as to control what telecommunications equipment is allowed into
the city prior to any additional applications being approved and applying any adopted ordinances to
previously approved cell sites retroactively (e.g. minimum distance away from schools) is a responsible
action. This is needed to avoid changing Carlsbad into an unhealthy city to live in not to mention
unsightly landscape of ubiquitous towers, boxes, wires and cameras.
Covid subsequently restricted further effort to obtain signatures, but the ease of getting these
signatures speaks to the serious reservations Carlsbad residents harbor over 4G/5G smart cell facilities
in their neighborhoods, schools, healthcare facilities etc.
Please consider the above in the Planning Department's revision of Policy 64. The city has many options
available that can limit the proliferation of smart cell facilities. It must recognize the risks inherent in
not making telecoms and site developers responsible for the equipment they install and not restricting
installations in areas that are fire prone or apt to cause immeasurable damage to property and life as
well as property values. Ms. Foster has sounded the alarm bells over the fire hazards of smart cell
wireless equipment. Ms. Lawson's victory in the courts signals that a new look at the health hazards is
imminent.
It would be in the city's best interest to implement the kind of changes in Policy 64 that would work to
address the urgency moving in a precautionary preventive approach rather than suffer after the fact
which the city of Malibu learned the hard way via its 2007 costly fire damage from utility poles
overloaded with smart cell wireless equipment. Adopting Elk Groves Front Yard Rule would be a great
first step in the right direction as would prohibiting WCF installations in Carlsbad's fire prone areas and
requiring annual inspections to monitor facilities and correct problems such as the smart meter and
connector issue.
CAUTION: Do not open attachments or click on links unless you recognize the sender and know the
content is safe.
Dec. 14, 2021 Item #16 Page 209 of 252
Attachment 1 – November 21, 2021 comments as previously submitted
Comments re Policy 64 submitted by Irene Tsutsui, Carlsbad constituent
November 21, 2021
To Planning Dept
Due to my huge concern about hazards especially electrical fires emanating from small cell wireless
equipment, I have suggested some verbage for Policy 64 to protect the city and citizens against damages
and costs. I have posted suggested modifications with reference links. The city makes it clear what it
cannot do vis-a-vis its obligations to the telecoms, however, it falls short in ensuring that the city and its
citizens are protected against hazards. Thus my focus is on these areas: Insurance, Indemnification,
Notices, Prohibited areas (such as ridgelines and slopes), the front yard rule which is used in Elks Grove,
Upgrades and keeping technology current, Compliance with the law, Annual Recertification. The
Precautionary Principle holds the telecoms accountable and endeavors to prevent the cost of hazards
such as electrical fires and collapses or errors in RF emissions readings from being borne by the city or its
citizens. An attorney of Andrew Campanelli’s multi-decades long experience drafting city ordinances
could help with specifics since he is aware of current pending legal cases and he understands the
complexities. My comments follow his recommended approach, and I included language from expert
sources codifying how a city can protect itself and its citizens’ health and welfare.
STATING THE CITY’S OVERALL INTENT: (suggest adding it on page 1 of Policy 64 as a fourth paragraph
right before the Policy’s stated purpose.
Add:
"The City ensures WCF placement in a way that does not 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, electrical fires or other related adverse events."
(Please add additional important language similar to Malibu’s statement)
https://www.malibucity.org/DocumentCenter/View/27969/Ordinance-No-484
Dec. 14, 2021 Item #16 Page 210 of 252
“Carlsbad’s Poinsettia fire in May 2014 due in part to high winds accelerating the spread of fire
throughout hills and slopes makes it essential that wireless communication facilities be engineered to
prevent fire and withstand fire events as much as possible. Precautionary measures should be taken in
a manner comparable to other commercial
facilities with extensive, complicated electronics and wiring and flammable, sometimes
hazardous and toxic, materials on site.”
Policy 64 Item E. Application and Review Guidelines (Pages 16 through 20)
INSURANCE AND INDEMNIFICATION, California Coastal Commission and NEPA permits
Application and Review Guidelines (pages 16 through 20)
(https://scientists4wiredtech.com/malibu Items 16, 17, 18 and 19)
Add as item 17:
"Insurance.The applicant shall maintain current at all times liability and property insurance for each
small cell installation in the Public Right Way. Prior to the issuance of a personal wireless service
related permit, the applicant shall pay for and provide a copy of a policy of General Liability Insurance
issued by an “A” rated Insurance company and cover the named applicant and each operator of an
antenna if different than the applicant. Each Such policy shall be a claims made policy, listing the
applicant as a primary insured, and the City as an additional insured, in the minimum amount of
$2,000,000 / $25,000,000. The policy shall not have a pollution or other exclusion which excludes
injuries or damages from EMF/RF exposures. A true and correct copy of the policy of insurance shall
constitute proof of insurance required by this Subsection.”
Encinitas also has an extensive section on insurance:
https://ed84ae68-328e-42f4-847a-
66fb863ac9df.filesusr.com/ugd/2cea04_953f1b48d3164fd380211040867b2e5a.pdf P22
Add as item18
“Indemnification.Prior to issuance of a personal wireless service related permit, to the fullest extent
permitted by law, the Applicant and/or any Licensee under any Master License Agreement, and any
successors and assigns, shall defend, indemnify and hold harmless City, its employees, agents and
officials, from and against any liability, claims, suits, actions, arbitration proceedings, regulatory
proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including, but
not limited to, actual attorney’s fees, litigation expenses, and court costs of any kind, without restriction
or limitation,incurred in relation to, as a consequence of, arising out of, or in any way attributable to,
actually, allegedly or implied, in whole or in part, related to the wireless facility, the issuance of any
permit or entitlement in connection therewith and the operation of the facility thereafter. The applicant
shall pay such obligations as they are incurred by City, its employees, agents and officials, and in the
event of any claim or lawsuit,shall submit a deposit in such amount as the City reasonably determines
necessary to protect the City from exposure to fees, costs or liability with respect to such claim or
lawsuit. If the applicant or operator is a subsidiary of a parent corporation the parent corporation shall
also bind itself to the indemnification requirement and amount.”
Add if applicable:
“Prior to the issuance of a permit, the applicant shall obtain a Coastal Zone permit fromthe California
Coastal Commission or its designated agent, if the placement oft he wireless service equipment is
intended to occur in a zone requiring such permit.”
“Prior to the issuance of a permit, the applicant shall establish and prove it has complied with NEPA, has
completed the FCC’s NEPA checklist and to the extent required has done a NEPA environmental analysis
Dec. 14, 2021 Item #16 Page 211 of 252
and provided the results of that analysis to the FCC. If exemption is claimed, applicant must state the
basis for such exemption and provide proof, including all supporting documents that such exempt
installation meets prescribed requirements.”
Policy 64 Page 20
Application and Review Guidelines
(Malibu ord477 U page 10 of 16)
http://www.keepcellantennasawayfromourelkgrovehomes.org/cell-antenna-policies/malibu
Malibu-ord-unsigned-477U
(http://www.keepcellantennasawayfromourelkgrovehomes.org/wp-content/uploads/2020/12/Malibu-
ord-unsigned-477U.pdf)
Item E Add as item 19
Public Notice:
(1) Within seven (7) calendar days after an application is submitted to the
City, the applicant shall: (1) post notice at the proposed project site in a
location near to and visible from the ROW and (2) provide the City with
evidence that such notice has been posted. The applicant shall maintain
and replace the posted notice as necessary during the entire application
review process until the Director acts on the application and all appeals
have been exhausted. The posted notice shall be composed from durable
quality and weather-resistant materials that will not deteriorate under
normal circumstances for at least 180 calendar days. The posted notice
shall be at minimum 17 inches wide by 11 inches tall. The posted notice
shall not be placed in any location where it would obstruct travel or
visibility for vehicles, bicycles, pedestrians or other users in the ROW.
The City encourages applicants to consult with the Planning Department
on placement locations to avoid any potential hazards.
Public Notice
(2) Within five (5) business days from the date on which an application is
determined to be complete, the Director shall notify in writing of the filing
of the application property owners and residents of all property within a
one thousand(1,000) foot radius of the proposed project, but in no event
fewer than the owners and occupants of ten (10) developed properties. The
purpose ofthe notice is to inform the surrounding property owners and
residents oft he filing of the application and provide an opportunity for
comment on the application prior to the Director’s decision. The notice
shall describe the request, provide a map showing the specific location of
the proposed project, describe the review process and time frames, indicate
how to contact the applicant and case planner assigned to the application,
and the City-assigned application identifier.
Suggested verbage similar to Encinitas ord re fire issue:
Dec. 14, 2021 Item #16 Page 212 of 252
d84ae68-328e-42f4-847a
6fb863ac9df.filesusr.com/ugd/2cea04_953f1b48d3164fd380211040867b2e5a.pdf (P12)
Add as item 20
g) Fire Department Review. After submittal by the applicant, the Director shall transmit the entire
application packet to the Fire Prevention Division. The Fire Chief shall review the application for
compliance with objective health and safety standards related to fire hazards, including but not limited
to all applicable provisions in Title 10 of the Encinitas Municipal Code. The Fire Chief shall inform the
Director in writing of its conclusions and any recommended conditions for public health and safety.
Policy 64page 7
Item A Location Guidelines (For Placement of WCFs (including SWFs)
Add item 6
Fire Risk:
“No WCF should be installed on or near a ridgeline or slope abutting a chapparal populated area.”
Policy 64 Page 7
Discouraged Locations
Section A 2:
Add item g “Near or on a ridgeline or slope abutting a chaparral populated area. See item 6.”
Policy 64 Page 18
Application and Review Guidelines
Item E 4.5
Add item i “Proximity to a ridgeline or slope abutting a chaparral populated area. See item 6”
************************************
For reference see “Prohibited Locations” MALIBU https://scientists4wiredtech.com/malibu
Item D 1 (b)
D. Standards for Personal Wireless Service Facilities Not Located Within a Public Right-of-Way.
b) Prohibited Locations. No personal wireless service facility shall be established in the locations
described in subparagraphs (i), (ii) and (iii)herein.
(i) Ridgelines.No personal wireless service facility shall be placed on or near a ridgeline.
(ii)Residential Zones.No personal wireless service facility shall be placed within a residential zone,
including areas set aside for open space, parks or playgrounds.
(iii)Open Space.No personal wireless service facility shall be placed within an open space zone or
park. A personal wireless service facility is not and shall not be deemed a"public utility" as that term is
otherwise defined and understood in the Malibu Municipal Code regarding development in such open
space zones.
Sections 3 and 4 mention“minimizing risk of loss” and “minimizing risks to life and property from fire
hazard.
https://www.malibucity.org/DocumentCenter/View/27969/Ordinance-No-484
(Elk Grove) City of EG Ordinance 19-2019
•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
Dec. 14, 2021 Item #16 Page 213 of 252
http://www.keepcellantennasawayfromourelkgrovehomes.org/wp-content/uploads/2019/09/City-of-
EG-Ordinance-19-2019.pdf Page 13
See EG ord items A 6 b, 8 b and item C 3 for FRONT YARD RULE (discussed at Zoom meeting11/2/21 with
Eric Lardy, Corey Funk, Mark Graham and Carlsbad residents)
Policy 64 Page 8
D Design Guidelines
Suggestions on where to insert the language:
Add Elk Grove 6 b verbage to Policy 64 Page 8 item 5 Setbacks
Add Elk Grove 8 b and C3 verbage to Policy 64 Page 8 item 6 Building or Structure Mounted WCFs and
SWFs
23.94.050 Development standards. (Elk Grove ord verbage)
A. General Development Standards. Unless otherwise exempt pursuant to EGMC
Section 23.94.040,Exemptions, or as otherwise provided in an agreement approved by
the Elk Grove City Council pursuant to EGMC Section 23.94.035. Small Cell Wireless
Communications Facilities, the following general development standards shall apply to all
wireless communications facilities:
1. All wireless communications facilities shall comply with all applicable
requirements of the current uniform codes as adopted by the City and shall be
consistent with the General Plan and this title, as well as other standards and
guidelines adopted by the City.
** ** **
** ** **
6. In a residential zoning district, the following development standards shall apply,
unless the applicant can demonstrate with substantial evidence satisfactory to the
approving authority that such siting limitation will materially inhibit personal
wireless service as to a particular small cell wireless communication facility.
a. No small cell wireless communication facility shall be placed within five hundred
(500' O") feet of another small cell wireless communications facility.
b. No small cell wireless communication facility shall be located
immediately adjacent to, nor immediately across the street from,a front yard
of any residential dwelling.
c. The cumulative total of all associated equipment from all wireless
communications providers. including antennas, for a single facility or
property shall not exceed twenty-eight (28) cubic feet in volume.
6-7._At least ten (1 O' O") feet of horizontal clearance shall be maintained between
any part of the antenna and any power lines unless the antenna is installed to be
an integral part of a utility tower or facility.
7-8._ Development Standards for Antennas(Excluding Amateur Radio Antennas).
Unless otherwise exempt pursuant to EGMC Section 23.94.040, Exemptions, the
following development standards shall apply to receive-only antennas (ground and
building-mounted), parabolic antennas, and satellite earth stations as defined
in this section:
a. Maximum Number. One (1) wireless facility per parcel, unless the
applicant can demonstrate the service need for additional antenna.
b. Antenna Location. Parabolic antenna and satellite earth stations shall be
Dec. 14, 2021 Item #16 Page 214 of 252
ground-mounted in residential zoning districts. In all nonresidential zoning
districts, the preference is for building-mounted antennas. No antenna shall
be located in the required front or street side yard of any parcel unless
entirely screened from pedestrian view of the abutting street rights-of-way
(excluding alleys). In all zoning districts, ground-mounted antennas shall be
situated as close to the ground as possible to reduce visual impact without
compromising their function and all portions of the structure/antenna shall
be set back a minimum of five (5' O")feet from any property line.
c. Height Limit. The height limit for ground-mounted antennas is six (6' O")
feet. …….
** ** **
** ** **
C. Development Standards for Towers. The following development standards shall apply
to towers (including co-location facilities) as defined in EGMC Section 23.94.020,
Definitions:
1. Site Design. All facilities (including related equipment) shall be designed to
minimize the visual impact to the greatest extent feasible, considering
technological requirements, by means of placement, screening, and camouflage,
to be compatible with existing architectural elements, landscape elements, and
other site characteristics. The applicant shall use the smallest and least visible
antennas possible to accomplish the owner/operator's coverage objective. A visual
impact analysis is required to demonstrate how the proposed facility will appear
from public rights-of-way (including public trails).
2. Safety Design. All facilities shall be designed so as to be resistant to and
minimize opportunities for unauthorized access, climbing, vandalism, graffiti, and
other conditions which would result in hazardous conditions, visual blight, or
attractive nuisances.
3. Location. Towers shall not be located in any required front or street side yard in
any zoning district. The setback distance from any abutting street right-of-way,
residential property line, or public trail shall be equal to the height of the facility
(tower and related equipment). Otherwise, the minimum setback distance from all
other property lines shall be at least equal to twenty(20%) percent of the height of
the tower. Existing towers may be allowed to increase the height without requiring
the tower to be relocated as part of the conditional use permit approval, provided
the overall maximum height of the tower does not exceed the height limit listed in
subsection (C)(4) of this section, unless an exception is approved by the
designated approving authority.
4. Height Limit. The height limit for towers
** ** **
** ** **
Policy 64Page 15 In order to ensure a non-biased, hands off objective certification that does not favor
either the site developer or city, the following added verbage is recommended:
Performance Guidelines
Item D 5
Add word “independent”(radio frequency engineer) and “this type of” (facility) line 10 through 12
Dec. 14, 2021 Item #16 Page 215 of 252
“If the the city planner or engineering manager finds good cause to believe that the facility is not in
compliance with any laws applicable to human exposure to RF emissions, the city planner or engineering
manager may require the permittee to submit a written report certified by a qualified,
independent radio frequency engineer familiar with this type of facility that certifies that the facility is
in compliance with all such laws.“
Policy 64 Page 15-16
Item D Add verbage to item D 5 or create new item D 7 (addresses technology and safety upgrades)
(Add verbage) https://scientists4wiredtech.com/malibu items 24 and 25
COMPLIANCE WITH APPLICABLE LAW
Permit,review, renewal and revocation procedure. The City finds that the technology associated with
telecommunications equipment is subject to rapid changes and upgrades as a result of industry
competition and customer demands, and anticipates that telecommunications antennas and related
equipment with reduced visual impacts will be available from time to time with comparable or improved
coverage and capacity capabilities. The City further finds that it is in the interest of the public health,
safety, and welfare that telecommunications providers be required to replace older facilities with newer
equipment of equal or greater capabilities and reduced visual impacts as technological improvements
become available. Therefore, any modifications requested to an existing facility for which a permit
issued pursuant to this Chapter authorizing establishment of a wireless facility shall permit the city
planner or engineering manager to review the provider’s existing facility to determine whether requiring
newer equipment or applying new screening techniques that reduce visual impacts is appropriate if
technically feasible.
At any time,the city planner or engineering manager may initiate proceedings to revoke a permit issued
pursuant to this Chapter. Grounds for revocation shall be limited to a finding that the owner or operator
has abandoned the facility, the facility is no longer in compliance with either the general requirements
or design standards of this Title, the conditions of approval and the owner or operator has failed to bring
the facility into compliance within ninety (90) days after a notice has been sent by the director requiring
the facility to be brought into compliance, the facility is no longer in compliance with applicable FCC or
FAA regulations, the facility has not been upgraded to reduce or minimize its impact to the extent
reasonably permitted by the technology available at the time of any requested modifications, or if the
city planner or engineering manager determines that revocation would be in the best interest of the
public health, safety, or welfare, including circumstances like fire hazards, transitional areas or view
corridors.
ANNUAL RECERTIFICATION
It is important that telecoms know their smart cell wireless equipment and installations will be tested
on a regular basis so that they will be encouraged to test their own equipment before installing them,
and they are incentivized to install safe, up to date, reliable equipment in such a way that ensures
satisfactory quality and performance. Currently there is no regulatory agency or board testing or
monitoring such installations and there is no certification process; thus I suggest the following language
be added to Policy 64 as a precautionary measure of protection to the city and its citizens to discourage
failures and hazards.
MODEL WIRELESS TELECOMMUNICATIONS ORDINANCE
for Siting of "Small Cell" Telecommunication Infrastructure
Dec. 14, 2021 Item #16 Page 216 of 252
https://wisconsinsafetech.files.wordpress.com/2020/05/5g-model-telecom-ordinance-by-americans-
for-responsible-tech-1.pdf (
Page 7
Policy 64 Page20
Add a new section Page 20 (before “SEVERABILITY”)
“F. Annual Recertification “
* The city shall have the right to employ a qualified, independent radio frequency engineer to conduct
an annual random and unannounced test of the Permittee’s small cell wireless installations located
within the city to certify their compliance with an FCC radio frequency emission limits as they pertain to
exposure to the general public. The reasonable cost of such tests shall be paid by the Permittee.
* In the event that such independent tests reveal that any small cell installation or installations owned
or operated by Permittee or its Lessees, singularly or in the aggregate, is emitting RF radiation in excess
of FCC exposure guidelines as they pertain to the general public, the city shall notify the Permittee and
all residents living within 1500 feet of the small cell installation(s) of the violation, and the Permittee
shall have forty-eight(48) hours to bring the small cell installation(s) into compliance. Failure to bring
the small cell installation(s) into compliance shall result in the forfeiture of all or part of the Compliance
Bond, and the city shall have the right to require the removal of such installation(s) as the city in its sole
discretion may determine is in the public interest.
* Any small cell wireless installation which is not removed within 30 days after being listed as no longer
in use in the annual recertification affidavit shall be subject to a fine of $100/day until such installation is
removed.
* Where such annual recertification has not been properly or timely submitted, or equipment no longer
in use has not been removed within the required30 day period, no further applications for small cell
wireless installations will be accepted by the city until such time as the annual recertification has been
submitted and all fees and fines paid.
References
https://scientists4wiredtech.com/malibu/ Items 16, 17, 18 and 19)
(Malibu ord477 U page 10 of 16)
http://www.keepcellantennasawayfromourelkgrovehomes.org/cell-antenna-policies/malibu
Malibu-ord-unsigned-477U
Download (http://www.keepcellantennasawayfromourelkgrovehomes.org/wp-
content/uploads/2020/12/Malibu-ord-unsigned-477U.pdf)
https://www.malibucity.org/DocumentCenter/View/27969/Ordinance-No-484
(Elk Grove) City of EG Ordinance 19-2019
http://www.keepcellantennasawayfromourelkgrovehomes.org/wp-content/uploads/2019/09/City-of-
EG-Ordinance-19-2019.pdf Page 13
https://scientists4wiredtech.com/malibu
Dec. 14, 2021 Item #16 Page 217 of 252
https://wisconsinsafetech.files.wordpress.com/2020/05/5g-model-telecom-ordinance-by-americans-
for-responsible-tech-1.pdf
Page 7
https://ed84ae68-328e-42f4-847a-
66fb863ac9df.filesusr.com/ugd/2cea04_953f1b48d3164fd380211040867b2e5a.pdf PP 12 & 22
https://stop5ginternational.org/checklist-for-municipal-codes-addressing-small-cell-installations/
Dec. 14, 2021 Item #16 Page 218 of 252
2 November 2021
Mr Eric Lardy
Associate Planner
City of Carlsbad
1635 Faraday Avenue
Carlsbad CA 92008
Dear Eric,
Thank you for taking the time to Zoom meet with all of us today to discuss 'The Front Yard Rule'
and other issues related to Carlsbad's wireless technology infrastructure policies.
We deeply appreciated your sincere and respectful attention.
The news that Carlsbad's current wireless technology infrastructure policies are under review -
and may possibly be revised -is very happy news for me personally.
From 2003-2014 I lived with my Robotics Engineer boyfriend in a fully automated 'smart' home;
10K sq ft of devices, gadgets, lighting and appliances all operating off WiFi/wireless and 'smart'
technologies.
When I moved into that home I considered myself to be a very happy, healthy, intelligent and
contributing member of this city. I practiced yoga and hiked every day. I volunteered for beach
clean-ups, dog rescue and addiction counseling. I owned property and owned/operated a local
business that I believe served the wellbeing of the Carlsbad community.
By the time I moved out of that home I was officially medically disabled with symptoms that
included: chronic insomnia, migraines, heart palpitations, inexplicable digestive disorders and
random seizures. The hippocampus area of my brain became inflamed to the point of traumatic
injury which caused mood instability, memory issues, overwhelming sensitivity to light and sound
and the loss of my speech and handwriting.
During those 11 years I was told over and over it was 'impossible' to be reactive to WiFi/wireless or
'smart' technologies ... I started to assume that I was going to lose the normal functioning of my
brain and body with no explanation as to why.
Eventually I connected with environmental toxicity experts, neuroscientists, MDs, building
biologists and military personnel who were studying wireless and 'smart' technologies. These
people validated my symptoms as being related to EHSS -Electric Hypersensitivity Syndrome.
I became involved with a group and discovered there were many thousands of people all over the
world who were "WiFi Sick" too -many even worse.
Dec. 14, 2021 Item #16 Page 219 of 252
Per Arthur Firstenberg's book: 'The Invisible Rainbow -A History of Electricity and Life', people
like me are the 'canaries in the coal mine' of the technology 'revolution'.
In my current home there is no WiFi router. I use a hard-cabled-connected-through-the-phone-line
computer with external wired mouse and keyboard. I do not have a 'smart' phone, a 'smart' TV,
'smart' appliances, a 'smart' doorbell or a 'smart' thermostat although I often feel the frequencies
from my neighbors who do, from the 'smart' meters on the property and from T-Mobile's 4G-L TE
small cell array at the end of the street. I drive an older car with no wireless or 'smart'
technologies.
Living with intentionally reduced exposure to WiFi/wireless and 'smart' technologies means that
most days now I do feel overall much better. There are still many places I cannot go but I do
spend hours a week walking barefoot on the beach -
a
practice called 'Earthing' that is an
antidote to the many unavoidable exposures to WiFi/wireless and 'smart' technologies.
I have a lot of my speech back but still not [legible] handwriting ergo the typed note.
Obviously I was exposed to WiFi/wireless and 'smart' technologies in an extreme and
extraordinary way.
However, it is clear the telecom industry -along with cohorts developing companion technologies
-hope to install wireless and 'smart' technologies infrastructure every few hundred ft in every city
in every state, in every country; it's not just about small cell WCFs or 4G-L TE/5G anymore.
If telecom and their Al/loT cohorts are permitted to place WiFi/wireless and 'smart' technologies
infrastructure any place they please, all biological life and the environment we share will be
exposed in an extreme and extraordinary way.
The cameras, boxes, poles and cables will be horribly ugly to look at while emitting microwave
radiation that is undeniably a fire hazard and has proven harmful to the health of humans, animals,
plants, birds, insects and even the sea creatures that so many of us in Carlsbad love.
I will not presume to offer research, evidence, data, science or references you may already have
but please count on me if there is any way I can support the review and ultimate revision process
of Carlsbad's wireless infrastructure policies so they serve and protect Carlsbad residents and our
environment, NOT the telecom companies and their cohorts.
Implementing a policy like Elk Grove's 'The Front Yard Rule' would be a great place to start!
Again, thank you.
Sincerely,
Karen Rich, Carlsbad Resident since 1991
Dec. 14, 2021 Item #16 Page 220 of 252
Karen Rich Comment Letter 2
From: Karen Rich <KLR1959@protonmail.com>
Sent: Monday, November 22, 2021 10:06 AM
To: Corey Funk <Corey.Funk@carlsbadca.gov>; City Planning Eric Lardy <EricLardy@carlsbadca.gov>
Subject: Fw: Help Us Fix the 5G Mistake!
Hi Eric and Corey,
If you don't have this already, FYI.
I am curious to know what you are thinking about upgrading Carlsbad's Policy 64 to
something like Elk Grove's 'The Front Yard Rule'? Is there a next step for our group to
take that would help to move the consideration forward?
Thank You,
Karen Rich
760-224-8516
‐‐‐‐‐‐‐ Original Message ‐‐‐‐‐‐‐
On Monday, November 22nd, 2021 at 9:23 AM, Americans for Responsible Technology
<info@americansforresponsibletech.org> wrote:
Congress gave a billion dollar gift to the 5G industry
Dec. 14, 2021 Item #16 Page 221 of 252
Help us fix Congress's 5G mistake!
A little-noticed phrase in the new infrastructure bill hands
the wireless industry a giant holiday gift!
---,_. Americans for
1;=~-:::;= Responsible
~:; _ ... _•.•.-•--:Technology
~
Dec. 14, 2021 Item #16 Page 222 of 252
Dec. 14, 2021 Item #16 Page 223 of 252
Do you want your tax dollars spent on 5G deployment? If not,
read on....
Lobbyists for the wireless industry have quietly inserted language into the new
infrastructure bill that requires any new priority broadband project to
“support the deployment of 5G...” (See Section 60102 (a) (2) I (ii) (II) on
page 756.)
Legislators, eager to do something to help fix the digital divide, probably didn't
notice the language. But as we all know, 5G will not fix the digital divide. (See
below). The technology is slow, expensive, unnecessary, unreliable, subject to
hacking, and will need to be updated in the very near future to keep pace with
the superior service and speed offered by wired broadband.
The intent of the lobbyists who inserted this phrase into the bill is clearly to (1)
help their employers “hook” unsuspecting customers on their unregulated
service, binding them to a costly wireless future, whether they want it or not,
and (2) prevent federal funding for wired broadband projects.
It's outrageous, and there is only one way to fix it:
Congress needs to act!
Call your representatives in Washington today and ask them to
"Fix the 5G Mistake."
Dec. 14, 2021 Item #16 Page 224 of 252
And why not forward this message to a few friends?
Find your federal representatives
It’s worth remembering that beginning in the late 1990s, Verizon, AT&T and other
telecoms promised state utility commissions across the country that they would
connect all their customers with fiber optic cable. Rate increases were approved, and
the process began. But before they were even halfway done, the telecoms realized
that fulfilling that promise would deny them the ability to attract customers to their
new, highly profitable and unregulated wireless businesses instead. So the
deployment of wired broadband essentially ceased, creating the digital divide.
And while we're talking 5G.....
Don't let any municipal official tell you that their "hands are tied" with
regard to the deployment of 5G. The fact is that Congress gave local
governments plenty of control over deployment, but local governments
Dec. 14, 2021 Item #16 Page 225 of 252
have to pro-actively take that power through smart planning
provisions in their local codes.
Please read, download and share our new Advisory Bulletin on the powers
local governments have to control deployment of 5G.
Download the new Advisory Bulletin from the ART Tool Kit
This message is brought to you by Americans for Responsible Technology (ART), a non-
profit coalition of grassroots organizations across the country supporting the deployment
of safe, economical and future-proof wired technology and promoting equitable access to
technologies that benefit society and protect the health, safety, security, privacy and
property of all Americans. We are deeply grateful for your financial support.
The ART Team - Doug, Patti, Zoe, Ellen & Shawn
Dec. 14, 2021 Item #16 Page 226 of 252
Karen Rich Comment letter
From: Karen Rich <KLR1959@protonmail.com>
Sent: Wednesday, November 17, 2021 8:55 AM
To: Matthew Hall <Matt.Hall@carlsbadca.gov>; City Planning Eric Lardy <EricLardy@carlsbadca.gov>;
Corey Funk <Corey.Funk@carlsbadca.gov>
Cc: City Clerk <Clerk@carlsbadca.gov>
Subject: Citizen Request for Meeting with Mayor Hall RE: Updating Carlsbad Policy 64 for Wireless
Communications Facilities
November 17, 2021
Dear Mayor Hall,
We are informed and concerned Carlsbad citizens who would like the City of Carlsbad to implement a
strategic, protective policy upgrade to Policy 64 regarding placement of Wireless Communications
Facilities (WCFs) in residential neighborhoods.
The recent veto of of SB 556 (Dodd) allows the City of Carlsbad to legally do so.
In a November 2nd meeting with City Planners Corey Funk and Eric Lardy, we discussed a 2019 WCF
policy implemented by the City of Elk Grove, CA called 'The Front Yard Rule':
"b. No small cell wireless communication facility shall be located immediately adjacent to, nor
immediately across the street from, a front yard of any residential dwelling."
There are many reasons to implement a strategic, protective policy like Elk Grove's here in Carlsbad that
include but are not limited to:
• Shielding citizens in Carlsbad's residential neighborhoods from the microwave radiation exposure
emitted from WCFs.
• Diminishing the fire hazard that WCFs pose to Carlsbad residential neighborhoods - many of which are
designated 'high risk'.
• Maintaining the pleasing aesthetics and the property values of Carlsbad residential neighborhoods.
We'd really appreciate a meeting with you, Mayor Hall - to share information and understand your
position on this issue.
Would Tuesday November 23rd @ 10:am work for your schedule?
Thank you and Sincerely,
Karen Rich
760-224-8516
Irene Tsutsui
760-602-0839
Dec. 14, 2021 Item #16 Page 227 of 252
Mark Graham comment letter
November 22, 2021
Mayor Hall, Council Members and staff,
This message is in response to the City's Wireless Communication Facilities Public Input.
https://www.carlsbadca.gov/departments/community-development/planning/wireless-comment-form
Please see the document I am sending you in this message. I attempted to copy and paste the body of
my message into the City's web form but the web form did not have enough space.
One more note: Your web page says,
"Next steps
All input gathered will be presented to the City Council in December when the updated policy and
guidelines will be considered for adoption."
With all due respect this is way too fast for the City or its residents. Municipal telecommunications
policy is complicated. Haste makes waste. There is not enough time for the City to really learn the
extent of its possible regulatory authority per the Telecommunications Act of 1996 and applicable case
law, consider recommendations by its residents, prepare specific written ordinance or resolution for the
Council, receive advice from the City Attorney or other attorney that the City will hire for this purpose,
negotiate or at least communicate with the telecommunications companies who will surely have an
interest in your amendments to your cell antenna policy, receive input from your residents on your draft
proposed zoning code amendment, discuss and debate the proposal including residents' comments, and
then discuss and debate the final policy as amended in response to your residents' comments all by
December. Also, there is Christmas. I recommend that the City use a thoughtful and complete process
to formulate and receive public comment at every step of the way. This is the best way to achieve a cell
antenna policy that works well for and serves the interests of the City and your residents.
Sincerely,
Mark Graham
Keep Cell Antennas Away
www.KeepCellAntennasAway.org
Attachment 1 below
Dec. 14, 2021 Item #16 Page 228 of 252
Mark Graham
Keep Cell Antennas Away
www.KeepCellAntennasAway.org
Mark@KeepCellAntennasAway.org
November 22, 2021
Regarding City of Carlsbad cell antenna policy and possible changes to it
Mayor Hall, Mayor Pro Tem Blackburn, Council Members and staff,
My name is Mark Graham and I live in Elk Grove. I’m an expert on municipal
telecommunications policy. I have worked on municipal telecommunications policy since
February, 2017 and have worked with residents in New York, Tennessee, Maryland, Illinois, and
several California cities. I led the grassroots campaign to keep cell antennas away from homes
in Elk Grove, which set an example that other cities can follow.
Every city has to have a wastewater treatment plant. But as a City official you would not place
that plant right in front of homes.
My friends in Carlsbad tell me that your current zoning code as it relates to cell antennas needs
work. I think it’s something that the Council really needs to learn about. I am glad that the City
of Carlsbad has asked for input from the community regarding your policy on Wireless
Communication Facilities and possible changes to it.
https://www.carlsbadca.gov/departments/community-development/planning/wireless-
communication-facilities
Wireless Communication Facilities Public Input
https://www.carlsbadca.gov/departments/community-development/planning/wireless-comment-
form
By the way 4G and 5G cell antennas work together; that is, a 5G cell antenna or system cannot
work without many 4G cell antennas. Another term for these antennas is close proximity
microwave radiation antennas (CPMRA).
My purpose in writing to you is to help the City exercise its zoning authority over cell antenna
placement and enable Carlsbad residents to live free of the aesthetic and health and
environmental impacts that can result from the irresponsible placement of cell antennas. This
message will make several recommendations regarding Carlsbad’s new cell antenna policy. Feel
free to ask questions about any of this. If I don’t have an answer I will find it for you.
Dec. 14, 2021 Item #16 Page 229 of 252
Carlsbad residents do not want cell antennas near homes!
Carlsbad residents want you to keep cell antennas away from homes. There was a petition
signed by 145 Carlsbad residents to that effect. Although I have not seen the petition a couple of
your residents told me about it. The City probably has copies of the petition with those
signatures, which copies are incorporate into my public comments by this reference.
What the City CAN do: City regulatory authority over the placement of cell antennas
notwithstanding the TCA
My experience has shown me one key thing, which many cities fail to understand: state and
local governments really have broad regulatory or zoning authority over the placement of cell
antennas granted to them by the California Constitution and preserved by the
Telecommunications Act of 1996 (TCA). (47 U.S.C. 332(c)(7)(A))
More specifically, the City has this regulatory authority available to it, but will only have this
authority and be able to exercise it if the City appropriately amends its zoning code regarding
cell antenna placement and permitting.
Although the TCA is specific about the limitations on your zoning authority, it is not specific
about the extent of that authority. In other words TCA tells you what the City cannot do, but not
what it can do. One could infer from this that there is nothing the City can do to regulate the
placement and permitting of cell antennas, but such an inference would be incorrect. The way
preemption works is that all that is not preempted is allowed. The City can do everything other
than what is preempted.
Many telecom influenced attorneys and elected officials talk about the TCA as if it completely
preempts local zoning authority over cell antennas. But that is incorrect as a matter of law.
What you really need to know is what the City can do.
What the City cannot do: certain regulation of cell antennas is preempted by the TCA
The TCA also has five specific limitations or preemptions on local zoning authority. (47
U.S.C.§332(c)(7)(B)). Some of these are substantive and some are procedural.
The wireless industry often misrepresents these limitations and the City’s authority because it
suits their business (financial and control) needs to do so. For example a telecom law firm will
often say things like:
“The City cannot regulate cell antennas to protect your health or prevent environmental
effects.”
“The FCC sets electromagnetic field (EMF) limits; we can’t override them.”
“We cannot talk about health.”
“Our hands are tied.”
“Talk to your Senators about changing the TCA.”
“We would love to help you but we can’t.”
Dec. 14, 2021 Item #16 Page 230 of 252
The preceding statements are all knowingly misleading and / or incorrect and intended to deter
the City from exercising its regulatory authority over the placement and permitting of cell
antennas. This is deliberate strategy by telecom and its agents. These statements are all based on
an incorrect understanding of the TCA. Telecom spreads this opinion through fear by
threatening a lawsuit. Once a City Attorney falls for this false view of the law he or she usually
leads the entire City Council down the same path. This can be hard to correct. And everybody
loses: the City, residents, aesthetics, the environment and public health. Once permitted and
installed it can be nearly impossible to remove an irresponsibly placed cell antenna.
How to avoid being suckered (misled) by telecom
The way to prevent that is for the City Council, City Manager and City Attorney to all study
what the TCA and case law in the U.S. Court of Appeals for the Ninth Circuit actually say, and to
see what other California cities are doing. To listen to your residents and propose specific
regulations on cell antenna placement and permitting and get advice from an experienced
telecommunications attorney.
Attorneys I recommend
Andrew Campanelli
https://campanellipc.com/
(516) 746-1600
ajc@campanellipc.com
The most experienced and knowledgeable telecommunications attorney I know of is Andrew J.
Campanelli, Esq. I recommend that the City hire Mr. Campanelli to advise it on amendments to
your cell antenna policy. You cannot find a better attorney for this purpose. Mr. Campanelli has
been practicing exclusively telecommunications law for 28 years and has handled thousands of
cases. He can advise you from both the point of view of the City and its residents. It will be
very valuable for the City to hear from Mr. Campanelli as he will likely be the only attorney to
advise the Council from the point of view of your residents.
Gail Karish
https://bbklaw.com/our-team/gail-a-karish
gail.karish@bbklaw.com
Tel: (213) 605-1603
Another attorney very knowledgeable about municipal telecommunications policy is Gail Karish,
of the law firm Best, Best and Krieger LLC. Several California cities have hired Ms. Karish to
Dec. 14, 2021 Item #16 Page 231 of 252
advise them on cell antenna policy. A word of warning about Ms. Karish: unless you
specifically ask for it Ms. Karish will likely present to you what the City cannot do about cell
antenna regulation, but will not tell you what the City can do. She did this in Culver City on
November 8, 2021. However when asked by the Mayor whether the City could adopt the Front
Yard Rule as in Elk Grove or something similar to it she said yes.
Ms. Karish’s response was,
“I’m not familiar with the details of that particular rule although I do understand what it
um encompasses, or the, the policy behind it. . . . . Um so, I just want to go back and
mention. I did mention in the, the uh, presentation that you can regulate aesthetics. And
so to the extent that a rule like a Front Yard Rule, however formulated, ah is directed
towards avoiding unsightly installations directly in front of houses um I’m sure um
looking at the definition and working on the terminology we could probably come up
with a rule that would uh address that concern uh whether its exactly how it was uh
phrased in, in Elk Grove or in some other way. Uh you you can regulate aesthetics and so
if there are uh you know certain placements within the right of way that would be
aesthetically not pleasing you can certainly uh have a standard that would direct
applicants not to place their facilities in front of picture windows, for example, um or in
front of a home. And that may well, uh as long as there are other alternatives available in
the area that would probably uh pass muster under the FCC regulations and Federal law.”
(1:20:47 of the City Council meeting video)
Ms. Karish also participated in a City Council meeting in Malibu on December 9, 2020 during
which the City Council adopted a version of Elk Grove’s Front Yard Rule. Ms. Karish advised
the City Council on the specific wording of that policy, which was, “ D. Placements shall not be
in front of dwelling units or schools.” (City of Malibu Resolution 20-65, section 5.D.)
Between the two of them I prefer Mr. Campanelli. He is more deliberate about telling you what
the City can do. And about telling you what’s good for the City and its residents.
However the City can also get excellent legal advice on a specific proposed cell antenna policy
or any aspect of it from Ms. Karish.
Jonathan P. Hobbs
Mr. Hobbs is the Elk Grove City Attorney. Although you cannot hire him you can certainly call
him to discuss the legal basis for the Front Yard Rule in Elk Grove, which is aesthetics.
State telecommunication policy in California does not preempt local zoning authority
Almost every city has had for many years a cell tower section of its zoning code. In the last 4
years since Governor Edmund Brown vetoed SB 649 (Hueso), a bill that sought to strip local
government of its regulatory authority over the placement of cell antennas, many California
cities have updated their zoning codes to provide for cell antennas, often known as 4G and 5G.
Dec. 14, 2021 Item #16 Page 232 of 252
More recently Governor Newsom vetoed a similar bill, SB 556 (Dodd) which would have
overridden all conflicting local zoning codes and authorized the placement of cell antennas on
street light poles. Thanks to this veto the City of Carlsbad and other cities still retain local
zoning authority over the placement of cell antennas.
Other cities have taken strong action to protect themselves and their residents
Cities in Northern and Southern California that have studied this issue have taken strong,
proactive measures to regulate the placement of cell antennas, allowing them where needed and
keeping them away from homes as much as possible. These cities include Elk Grove, where we
have the Front Yard Rule for cell antenna placement, Petaluma, Malibu, Encinitas, Mill Valley,
and several others. Currently Culver City is also considering adopting the Front Yard Rule.
Specific recommendations for the City of Carlsbad
In addition to what I have already mentioned here I recommend that the City:
1. Find those petitions signed by 145 Carlsbad residents saying they do not want cell antennas
near homes. If necessary reach out to some of your residents who may have kept a copy.
2. Adopt the "front yard rule" on the location of cell antennas as adopted by the City of Elk
Grove into the City's municipal code. This is a Development Standard that regulates aesthetics.
It says, "b. No small cell wireless communication facility shall be located immediately adjacent
to, nor immediately across the street from, a front yard of any residential dwelling." This will
effectively protect the vast majority of Carlsbad homes from having a nearby cell antenna.
https://www.codepublishing.com/CA/ElkGrove/#!/ElkGrove23/ElkGrove2394.html#23.94.050
(EGMC 23.94.050 A.6.b.)
3. Require applications to demonstrate that a given proposed cell antenna will close a significant
gap in coverage and do so using the least intrusive means. The U.S. Court of Appeals for the 9th
Circuit interpretation of the TCA is still the prevailing case law today. MetroPCS, Inc. v. City &
County of San Francisco (9th Cir. 2005) 400 F.3d 715.
4. Hire attorney Andrew Campanelli to advise the City on its changes to policy 64. Mr.
Campanelli has practiced exclusively telecommunications law for 28 years and has handled
thousands of cases. Many cities have hired him to advise them on their cell antenna policies.
5. Require the applicant to file with the City, as a condition of permit issuance, a copy of the
applicant's routine environmental evaluation for the proposed cell antenna, which the National
Environmental Policy Act (NEPA) and the procedures of the Federal Communications
Commission (FCC) implementing NEPA require the applicant to prepare.
Dec. 14, 2021 Item #16 Page 233 of 252
https://www.ecfr.gov/current/title-47/part-1/subpart-i
6. Require the applicant to pay the City a certain amount of money with each permit application,
determined by the City, which the City will use to hire an independent expert to review and
evaluate the completeness and accuracy of each cell antenna permit application including,
without limitation, the alternative site analyses and radio frequency emissions report.
7. Become familiar with the effective range of cell antenna signals. This is directly relevant to
the question of placement and how many cell antennas are really necessary in a given area.
According to former Verizon CEO Lowell McAdam the range of a Verizon 5G cell antenna is
greater than 2,000’. This is in the real world, not the result of a calculation or an ideal but
unusual situation such as between two antennas on rooftops. Therefore telecom’s claim that a
cell antenna is needed every 300’ or 500’ is simply not true.
The following page presents an excerpt from an interview with McAdam from 2018.
http://www.keepcellantennasawayfromourelkgrovehomes.org/science/range-of-a-5g-cell-
antenna/
The title of the video is “Verizon CEO On The Future Of 5G CNBC.”
Starting at 5:29 in the video the interviewer asks Mr. McAdam, “Can you get through trees? Can
you get through leaves? Can you actually get somewhere were you don’t need cell sites ev, you
know 25 feet from my house?”
Verizon CEO Lowell McAdam responds: “Yeah well those were some of what I call the myths of
millimeter wave, because no one thought that was good, and by the way we’re the only ones that
have it now so it’s to their advantage to say it’s no good.”
“When we went out in these 11 markets, we tested for well over a year so we could see every
part of foliage, every storm that went through. We have now busted the myth that it has to be
line-of-sight. It does not. We busted the myth that foliage will shut it down. I mean that was
back in the days when a pine needle would stop it. That does not happen.
And the 200 feet from a home? We’re now designing the network for over 2,000 feet from
transmitter to receiver, which has a huge impact on our capital need going forward.
So those myths have disappeared.”
6:25
https://youtu.be/lYAufhIgkpI?t=313
The video link on my web page is broken but that link is current and working.
Dec. 14, 2021 Item #16 Page 234 of 252
That is all for now.
Please acknowledge your receipt of this message.
Sincerely,
Mark Graham
Keep Cell Antennas Away
www.KeepCellAntennasAway.org
Mark@KeepCellAntennasAway.org
Dec. 14, 2021 Item #16 Page 235 of 252
November 24, 2021
Via Email Only (corey.funk@carlsbadca.gov)
Mr. Corey Funk Associate Planner Planning Department
City of Carlsbad
1635 Faraday Avenue Carlsbad, CA 92008 Re: Verizon Wireless’s Comments to the City of Carlsbad’s Draft Revisions to
the Review and Operation Guidelines for Wireless Communication Facilities (City Council Policy No. 64). Dear Mr. Funk:
Our office represents Verizon Wireless. This letter provides Verizon’s comments on the
City of Carlsbad’s Draft Revisions to the Review and Operation Guidelines for Wireless Communication Facilities (City Council Policy No. 64). Verizon’s detailed comments to the proposed draft City Policy changes are attached as
Exhibit A to this letter. Verizon respectfully requests that the City consider the attached comments,
and that it revise or modify the proposed draft Policy to address the comments. Such revisions are needed to avoid improper application of the draft Policy provisions that would be inconsistent with federal and State law.
Verizon also requests that the City Staff further engage the wireless industry about
proposed changes to the Policy and looks forward to continuing conversations on this matter in either a Stakeholders Meeting or in separate discussions with each carrier before the revised Policy is presented to the City Council for consideration.
Verizon seeks to provide new, as well as enhanced and improved, wireless services within
the City and its communities to enable improved communications for everyday life, business, and other purposes, and for the critical use of first responders, especially during emergency situations (fires, policing activities and ambulance services). The new wireless services address the exploding consumer and business demand for high-speed mobile and fixed wireless broadband,
and to enable the deployment of new wireless technologies and innovative smart city and other society-enhancing solutions. Indeed, Verizon is an active participant in the San Diego Association of Governments and Southern California Association of Governments Digital Divide Task Forces and invites the City to join us in bridging the digital divide in our region. We believe when public and private sectors come together, especially in advancing the nation's digital infrastructure, the
communities that we serve, such as the City, are better able to benefit, grow and prosper.
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Verizon appreciates that the Policy was revised at page 2 to specifically exclude or exempt eligible facilities requests under Section 6409 of the Spectrum Act from the effect and implementation of the Guidelines. Further, Verizon recognizes the potentially helpful provisions
of the Policy (Review and Approval Guidelines, E.13) that allow for pre-approved designs for new
replacement poles possibly to be used for multiple applications within the City. Verizon also encourages the City to consider allowing for future changes to the Policy to be adopted and regularly updated by the Director of Community Development, not the Council, to
allow the City the most flexibility in updating the Policy to accommodate frequent advances in
wireless technology and equipment designs. While Verizon details many inconsistencies and concerns about the Policy in the attached document, for emphasis we highlight the following proposed draft Policy provisions that pose
particular concerns for the company:
• Small wireless facility location restrictions and justification requirements: Policy
regulations include requirements that prohibit certain areas for locating a wireless facility,
that push facilities into “preferred” locations and away from ”discouraged” areas, that
impose unreasonable setback requirements, and that require alternative site analyses and
business justifications for facilities. These regulations are contrary to federal law and will
also make large swaths of City lands off limits to needed wireless facilities, which will
create many significant gaps in Verizon’s network coverage and capacity.
These types of regulations should be eliminated as to small wireless facilities.
• Small wireless facility design restrictions: Policy regulations also improperly restrict the
height of small wireless facilities, attempt to control the wireless technologies used for
facilities, require infeasible and costly undergrounding of all utilities serving a facility and
all accessory equipment, and impose infeasible and costly design elements that cannot be
reasonably implemented in the field. Such restrictions and limitations are not consistent
with federal regulations and FCC rulings that expressly apply to the allowed height, size
and design of small wireless facilities. The restrictions will improperly inhibit the needed
deployment of wireless facilities within the City, which is not consistent with federal law
and policy.
These types of regulations should be eliminated as to small wireless facilities.
Verizon looks forward to working with the City Staff on a further revised draft Policy, which addresses the comments in this letter before being submitted to the City Council, that strikes the right balance between the City’s intent and the goals of the state and federal laws and regulations regarding the deployment of needed wireless network facilities.
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This letter should be included as part of the administrative record for the proposed revised Policy. Please let me know if you have any questions about this matter. Thank you.
Sincerely,
Kevin P. Sullivan, Esq.
Partner Gatzke Dillon & Ballance LLP Copies (all via email):
Jesús G. Román, Vice-President Government Affairs, Verizon Dominique Cano-Stocco, Executive Director, Local Engagement, Verizon Shahriar Afshar, Municipal Engagement Partner, Verizon Daisy Uy Kimpang, Municipal Engagement Partner, Verizon
Ethan Rogers, Network Attorney, Verizon
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EXHIBIT A
Verizon Wireless’s Comments to the City of Carlsbad’s Draft Revisions to Review and Operation Guidelines for Wireless Communication Facilities (City Council Policy No. 64). 1. Review Restrictions (The City may not prevent completion of a network, p. 3). The City should add language here in the discussion of the “materially inhibits” standard to explain that the FCC Small Cell Order determined an effective prohibition of service
occurs “where a state or local legal requirement materially inhibits a provider’s ability to engage in any of a variety of activities related to its provision of a covered service. This test is met not only when filling a coverage gap but also when densifying a wireless network, introducing new services or otherwise improving service capabilities.” “Thus, an effective prohibition includes materially inhibiting additional services or improving existing
services.” (FCC Small Cell Order ¶ 37 and footnotes 85-87.) Further explanation on these items should be added to the Policy. 2. Permit Process (Table A Processing Requirements, p. 6).
The attempted location preferences incorporated into Table A to locate WCFs mostly only in non-residential and non-open space zones could result in an effective prohibition of Verizon’s wireless services in violation of 47 U.S.C. §332(c)(7)(B)(i)(II). Limiting or prohibiting WCFs from being located in or adjacent to residential and open space zones
and areas of the City ignores the fact that network coverage/capacity needs and network coverage gaps exist in residential and open space areas. The limitations therefore are not consistent with federal law as explained more in Comment Nos. 3 and 4 below. These types of location restrictions in this Table should therefore be removed or revised.
3. Review and Approval Guidelines (Location Guidelines Sections A.1 and A.2, p. 7). Further, the significant WCF (not SWF) siting restrictions stated in the Preferred and Discouraged Locations are too broad, and very likely will lead to an improper prohibition
of wireless services. Application of the location restrictions in these Sections will make large swaths or areas of the City off limits to wireless sites, which could create many significant gaps in Verizon’s network coverage and capacity. Application of the location restrictions could violate 47 U.S.C. Section 253(a), which states
that “[n]o State or local statute or regulation, or other State or local legal requirement, may
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prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” The limitations may therefore result in a prohibition, or an effective prohibition, of wireless services in violation of the Section 253
of the TCA.
Further, application of the City’s location restrictions applied to a particular proposed WCF also cannot prohibit or have the effect of prohibiting the provision of wireless services under 47 U.S.C. §332(c)(7)(B)(i)(II) and T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d
987 (9th Cir. 2009) where Verizon has a significant gap in coverage and has proposed the
least intrusive means to fill that gap. These types of location restrictions in this Section should therefore be removed or revised to allow for an exception process for the placement of WCFs.
4. Review and Approval Guidelines (Location Guidelines Section A.2, p. 7). This Section improperly requires an applicant to show “no feasible alternative” to siting a
WCF (not a SWF) in a Discouraged Location. The legal test that is consistent with federal
law is the “least intrusive means” test established by the Ninth Circuit in T-Mobile USA,
Inc. v. City of Anacortes, 572 F.3d 987, 997-98 (9th Cir. 2009). The City may not enforce a standard that is not consistent with federal law.
The regulations in this Section should be revised to refer only to the “least intrusive means”
standard. 5. Review and Approval Guidelines (Location Guidelines Section A.3, p. 7).
This Section improperly requires an applicant to show that any location for a WCF (not a
SWF) is the “least visible to the public”, “least disruptive to the appearance of the host property”, not “readily visible”, or “hidden or disguised.” But, as stated above, The legal test that is consistent with federal law is the “least intrusive means” test established by the Ninth Circuit in T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 997-98 (9th Cir.
2009).
The regulations in this Section should therefore be revised to refer only to the “least intrusive means” standard.
6. Review and Approval Guidelines (Design Guidelines for WCFs and SWFs, Section B.1, p. 8). Section B.1 defines “stealth” in a manner that is likely not consistent with applicable law because the City could easily apply the definition in a way that would effectively prohibit
SWF deployment if, for example, the City determined that antennas or equipment, which
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complies with the federal size standards for SWFs, does not “visually blend into the background or the surface on which they are mounted.”
Further, the design principles and requirements of this Section should not be applied in a
manner that results in prohibitive cost impacts or results in a prohibition of wireless network services. The City’s Policy cannot materially inhibit deployment of telecommunications networks or create an appreciable impact on resources that materially limit plans to deploy wireless service. The FCC determined that increased per SWF costs
could impair and impede the needed deployment of SWFs, which is inconsistent with
national policy. (See FCC Small Cell Order ¶ 24.) Costly conditions imposed for site approval, such meeting subjective and undefined design standards, drain Verizon’s capital resources that otherwise could be used for network deployment, and would be improper to the extent fees or costs prohibit, or have the effect of prohibiting, the provision of wireless
services. (See FCC Small Cell Order ¶¶ 54-61.) Moreover, incurring additional costs for an alternative design solution is one factor that can be used by a carrier to reject the alternative design even in the context of macro wireless
facility or WCF applications. (See T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987,
998 (9th Cir. 2009).) The regulations should be revised to state that SWF designs meet the “stealth” requirement if they comply with the height, size and dimension standards identified in 47 CFR §
1.6002(l).
7. Review and Approval Guidelines (Design Guidelines for WCFs and SWFs, Section B.4, p. 8).
The height limitations imposed in this Section on SWFs (compliance with height
limitations in the zone and limiting heights to that of existing or replacement structures for new attachments) are inconsistent with federal and state law and should be revised. SWFs can be mounted on new structures or can extend the height of the existing pole or
structure to higher than other adjacent structures, including reaching a height of up to 50
feet. (47 CFR § 1.6002(l)(1)(i)-(iii).) The height allowances under federal law could exceed either the height limits in a City zone or the height of the structures being replaced. Also, CA Public Utilities Commission (CPUC) General Order 95 contains mandatory safety-related separation standards for equipment and lines attached to poles, which
standards would affect the height of a replacement pole and associated SWFs.
Also, the WCF height limitations stated in this Section could result in an effective prohibition of Verizon’s wireless services in violation of 47 U.S.C. §332(c)(7)(B)(i)(II) if a proposed WCF is required to be placed at a height in excess of a height limitation for a
zone as necessary for Verizon to fill a significant gap in service.
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The regulations should be revised to state that (1) SWF heights are allowed if they comply with the height standards identified in 47 CFR § 1.6002(l) and in CPUC General Order 95 (as applicable), and where technically or structurally necessary, and (2) WCF heights
are allowed as needed to avoid a significant gap in network coverage and capacity, and to
comply with CPUC General Order 95 (as applicable). 8. Review and Approval Guidelines (Design Guidelines for WCFs and SWFs, Section B.5.a-b, p. 8).
The setbacks for SWFs in these sections are not consistent with federal law, including the definition of SWFs found in 47 CFR section 1.6002(l)(1)-(6), and the discussion of SWFs in the FCC’s 2018 Small Cell Order. No such setback requirements for SWFs are stated in federal law. Furthermore, there is typically not enough space in the public right-of-way
to implement such setback requirements for SWFs. Verizon would also like to raise the question as to whether the same setback requirements are being required of other utilities in the public right-of-way as Verizon is a public utility under the California law. Such requirements, if applied to SWFs, should also be applied to installations by other utilities
in the public right-of-way in these areas.
Under federal law, local regulations must be applied equally to all public utilities using the right-of-way. Federal law recognizes the authority of local governments to “manage the public rights of way” though on a “competitively neutral and nondiscriminatory basis.” See
47 U.S.C. § 253(c).
The setback restrictions should therefore be removed for SWFs. Further, for SWFs, a carrier only needs to show that application of this City setback
regulation materially impaired or impeded Verizon’s deployment of wireless services, as
discussed in Comment No. 1 above, and the setback requirement would be preempted. These sections could also result in an effective prohibition of Verizon’s services in violation of 47 U.S.C. §332(c)(7)(B)(i)(II) based on the limitations on siting or locating a
WCF due to significantly enhanced setback requirements that don’t apply to any other
structures, and which would result in a significant gap in Verizon’s wireless network services. Also, the increased setback regulations for WCFs and SWFs stated in these sections also appear to be a pretext for impermissibly seeking to regulate radio frequency (RF) emissions
and therefore violate 47 U.S.C. §332(c)(7)(B)(iv). There is no reason for any form of
increased setback regulations for a WCF or SWF beyond those that are generally applicable to any other structure. A WCF and SWF outside the ROW must typically already comply with reasonable design regulations, and meet all FCC, and building code standards (including as to noise and structural integrity) to be approved. Therefore, the proposed
significantly increased minimum setback requirements just for WCFs and SWFs are
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arbitrary and unreasonable, and appear to be a pretext based on the unfounded fears of RF emissions, which is not a valid basis for local regulation.
The setback regulations should therefore be removed or revised. 9. Review and Approval Guidelines (Design Guidelines for WCFs and SWFs, Section B.6, pp. 8-9).
Section B.6 (b) is vague and subjective based on the limitations on siting or locating a WCF
or SWF “as far away as possible from the outer edge of a building or structure ….” This Section could result in an effective prohibition of Verizon’s wireless services in violation of 47 U.S.C. §332(c)(7)(B)(i)(II). The regulation should therefore be removed or revised.
WCFs and SWFs must be sited close to parapet walls on building roofs to achieve adequate signal propagation to meet coverage objectives. The further away from a parapet wall edge the WCF or SWF is located, the higher the antennas typically must be placed to project signals over the parapets and to street level elevations around the building. Pushing a WCF
or SWF “far away” from roof edges could result in an increase the height of the facility,
which may exceed height limitations and will otherwise increase the visibility of the WCF or SWF and defeat the purpose of Section B.1. Further, the requirement for equipment for a WCF or SWF on a residential building to be
placed inside a residential structure (as opposed to an outdoor walled enclosure) is
unreasonable, may not be possible due to space constraints on the private property, and could be cost-prohibitive. The regulations should be revised to allow exceptions where full compliance would be
technically infeasible, infeasible due to space or property owner restrictions or cost-
prohibitive. 10. Review and Approval Guidelines (Design Guidelines for WCFs and SWFs, Section B.7.c, p. 9)
Requiring trees “tall enough to screen three-quarters of the height of the monopole at the time of planting” as screening for a ground-mounted WCF will likely result in an effective prohibition of Verizon’s wireless services in violation of 47 U.S.C. §332(c)(7)(B)(i)(II). High trees adjacent to WCF antennas often cause near-field interference with RF signals
and typically significantly limit the coverage range of a WCF due to signal blockage of the
tall trees. Further, adding trees and landscaping may not be possible due to space constraints or property owner restrictions on the private property, Such screening and landscaping requirements therefore would prevent Verizon from closing a significant gap in coverage.
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Verizon raises similar concerns to placing monopoles next to tall buildings for the same reasons (interference, blockage of signal propagation, etc.)
The regulations should be revised to allow exceptions where full compliance would be
technically infeasible or infeasible due to space or property owner restrictions. 11. Review and Approval Guidelines (Design Guidelines for WCFs and SWFs, Section B.10, p. 9)
This Section should be removed or revised for WCFs and SWFs as it will result in an effective prohibition of Verizon’s wireless services in violation of 47 U.S.C. §332(c)(7)(B)(i)(II). For SWFs, the FCC determined that undergrounding requirements, similar to aesthetic requirements, must be reasonable, or “technically feasible” and meant
to avoid “out-of-character deployments. (See FCC Small Cell Order, ¶¶ 86, 90.) For WCFs, utility lines are typically already placed underground in a trench, unless it is determined by the utility provider to not be feasible.
The regulations should be revised to allow above-ground connection of utility lines to
SWFs and WCFs. 12. Review and Approval Guidelines (WCF and SWF Design Guidelines for the ROW
Section C1, p. 10).
The FCC Small Cell Order was adopted to provide guidance on appropriate approval criteria for small cells. The order defines “small wireless facilities” with specific height and dimension thresholds. 47 C.F.R. § 1.6002(l). The FCC addressed appropriate aesthetic
criteria for approval of qualifying small cells, which criteria were upheld in City of
Portland v. United States, 969 F.3d 1020 (9th Cir. 2020), cert. denied, concluding that they must be: “(1) reasonable, and (2) published in advance.” (FCC Small Cell Order, ¶ 86.) “Reasonable” standards are “technically feasible” and meant to avoid “out-of-character deployments.” (Id., ¶ 87.)
California Public Utilities Code Section 7901 grants telephone corporations such as Verizon Wireless a statewide right to place their equipment along any public right-of-way, including new poles. The proposed preference list in this section has a first preference of existing or replacement
streetlight poles. If the City favors these types of poles over other options, it would
contradict California Government Code Section 65964(c) which bars cities from limiting wireless facilities to sites owned by particular parties. Also, having a preferred structure type list, such as shown in Section C.1, exceeds federal law requirements above as federal law doesn’t state such a preference of structure types and such a preference list would then
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be an added requirement that goes beyond what the FCC has deemed reasonable under its Small Cell Order.
Finally, no requirement to show the “least intrusive” design, or that a “more preferred”
support pole, applies to SWFs. In 2018, the FCC rejected requirements that “applicants … show that the proposed facilities are the ‘least intrusive means’ for filling a coverage gap.” (FCC Small Cell Order ¶40 and note 94.) Accordingly, an application for a SWF is not required to comply with this Section.
Nor can this Section require the “smallest” wireless antenna or equipment, and the requirement must be removed as unworkable and inconsistent with federal law. Under the TCA, the City cannot require Verizon to submit an explanation of the communications services being provided and whether they are current technology, or otherwise attempt to
control the technological and operational aspects of wireless services. (See New York
SMSA Ltd. Partnership v. Town of Clarkstown 612 F.3d 97, 105-106 (2nd Cir. 2012) (local requirements or preferences for certain or alternative technologies, and local attempts to control the technological and operational aspects of wireless services, violate the TCA).)
Also, the requirement in this Section to utilize “smallest” antennas and equipment should be removed as it is vague and ambiguous, and without objective or reasonable standards. Further, wireless carriers have different network operations and objectives, and the “smallest” antennas and equipment may be feasible to be used by one carrier but not
feasible to be used by another carrier.
Finally, regarding a SWF, the City cannot require Verizon to show (1) a “clearly defined technical service objective”, or (2) why the “least intrusive” design or most preferred pole location is not available. In 2018 the FCC eliminated requirements that applicants show a
“coverage gap”-based analytical approach for small wireless facility applications and
instead established a new national standard for what constitutes effective prohibition of service under the Act. (See FCC Small Cell Order, ¶¶ 9-10, 21, 37 and 40 and notes 87-88 and 94.)
The regulations in this section should be revised to (1) exempt SWFs from having to provide
alternative site analyses, to show the facility is the “least intrusive” design or site, to
provide coverage maps, or to use the “smallest” antennas or equipment provided the size and dimension requirements of 47 CFR § 1.6002(l) are met, and (2) exempt WCFs from having to use the “smallest” antennas or equipment.
13. Review and Approval Guidelines (WCF and SWF Design Guidelines for the ROW Section C.2.a, p. 11). The height limitations imposed in this Section on SWFs are inconsistent with express
federal law and should be revised.
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SWFs can be mounted on new structures, or can extend the height of the existing pole or structure, to higher than other adjacent structures, including reaching a height of up to 50
feet. 47 CFR § 1.6002(l)(1)(i)-(iii). The height allowances under federal law could exceed
either the height limits in a City zone or the height of the structures being replaced. Also, CA Public Utilities Commission (CPUC) General Order 95 contains mandatory safety-related separation standards for equipment and lines attached to poles, which standards would affect the height of a replacement pole and associated SWFs. Technically infeasible
standards for small cells are unreasonable and prohibitive according to the FCC. (FCC
Small Cell Order, ¶¶ 86-87.) Also, the WCF height limitations stated in this Section could result in an effective prohibition of Verizon’s wireless services in violation of 47 U.S.C. §332(c)(7)(B)(i)(II) if
a proposed cell facility is required to be placed at a height in excess of a height limitation for a zone as necessary for Verizon to fill a significant gap in service. The regulations should therefore be revised to state that (1) SWF heights are allowed if
they comply with the height standards identified in 47 CFR § 1.6002(l) and in CPUC
General Order 95 (as applicable), and (2) WCF heights are allowed as needed to avoid a
significant gap in network coverage and capacity, and to comply with CPUC General Order 95 (as applicable).
14. Review and Approval Guidelines (WCF and SWF Design Guidelines for the ROW Section C.2.b, p. 11). The stealthing/concealment requirements may be technically infeasible to the extent covering the face of certain antennas with a radome or shroud impedes signal propagation.
This regulation should be revised or qualified to state “unless technically infeasible.” 15. Review and Approval Guidelines (WCF and SWF Design Guidelines for the ROW Section C.2.c, p. 11).
The size and width standards here are inconsistent with the express federal regulations on SWFs found at 47 CFR § 1.6002(l). The regulations should therefore be revised at c.1 to eliminate the last sentence as only
antennas, and not associated equipment items or shrouds, are included in the 3 cubic feet
volume standard at 47 CFR § 1.6002(l)(2). Further, sections c.2 and c.3 should be
eliminated and replaced with language to state only that the width and design of top-mount antennas should comply with the size and dimension standards found in 47 CFR § 1.6002(l).
Dec. 14, 2021 Item #16 Page 246 of 252
16. Review and Approval Guidelines (WCF and SWF Design Guidelines for the ROW Section C.2.d -e.1, pp. 11-12).
The FCC Small Cell Order regarding SWFs requires that an agency utilize “reasonable”
design standards that are “technically feasible” and meant to avoid “out-of-character deployments.” (¶ 87; these FCC requirements were upheld in City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020), cert. denied.) Small cell antennas (including microwave antennas) and equipment could be attached to poles or structures in the ROW
and be consistent with the character of the surroundings. Further, SWF antennas and
equipment can be attached to a pole consistent the design, size and volume standards that are stated in the federal regulations found at 47 CFR § 1.6002(l) and as stated in CPUC General Order 95.
The regulations in these sections should be revised to state that SWF antennas and
equipment can be attached to the pole or support structure unless out-of-character with the surroundings, and as consistent with the design, size and volume standards found at 47 CFR § 1.6002(l) and as stated in CPUC General Order 95.
17. Review and Approval Guidelines (WCF and SWF Design Guidelines for the ROW Section C.2.e.2, p. 12). Federal regulations expressly and specifically govern the size or volume standards for non-
antenna equipment for SWFs, and the City metrics listed in this section do not comply with
those federal rules.
The regulations in this section should be revised to state that all pole-mounted SWF non-antennas equipment, including cabinets, can be installed consistent with size and volume
standards found at 47 CFR § 1.6002(l).
18. Review and Approval Guidelines (WCF and SWF Design Guidelines for the ROW Section C.2.f, p. 12).
This requires accessory equipment to be installed underground if feasible. Blanket undergrounding requirements are unreasonable according to the FCC because small radio boxes or similar items on the side of a street light pole are not “out-of-character” among other right-of-way infrastructure.
Further, the FCC determined that increased per SWF costs could impair and impede the needed deployment of SWFs, which is inconsistent with national policy. (See FCC Small Cell Order ¶ 24.) Costly conditions imposed for site approval, such as undergrounding equipment, drain Verizon’s capital resources that otherwise could be used for network
deployment, and would be improper to the extent fees or costs prohibit, or have the effect of prohibiting, the provision of wireless services. (See FCC Small Cell Order ¶¶ 54-61.)
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This section should be revised to state that SWF accessory equipment does not require undergrounding if the equipment complies with the volume and size standards identified in
47 CFR § 1.6002(l). 19. Review and Approval Guidelines (WCF and SWF Design Guidelines for the ROW Section C.2.j, p. 12).
This Section should be revised to be consistent with federal law. As discussed above, SWFs
can be a height and design allowed under 47 CFR § 1.6002(l)(1) and as required on replacement poles governed by CPUC General Order 95. Further, WCFs can be a height needed to fill a significant gap in wireless coverage. (T-
Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987 (9th Cir. 2009).) The regulations should therefore be revised to state that (1) SWF heights and designs are allowed if they comply with the height standards identified in 47 CFR § 1.6002(l) and in
CPUC General Order 95 (as applicable), and (2) WCF heights are allowed as needed to
avoid a significant gap in network coverage and capacity, and to comply with CPUC
General Order 95 (as applicable). 20. Review and Approval Guidelines (WCF and SWF Design Guidelines for the ROW
Section C.3.e, p. 13). The requirement in this Section that requires, for new poles without a streetlight, antennas and all equipment not installed underground be concealed and integrated into the overall design of the pole (with no exterior equipment boxes or shrouds attached to the pole), is
unreasonable for SWFs. The onerous restrictions will impair and impede Verizon’s ability
to densify and enhance its wireless network, and will result in an effective prohibition of wireless services. The restrictions are also inconsistent with 47 CFR § 1.6002(l) and CPUC General Order 95 (as applicable). This Section also contradicts Public Utilities Code Section 7901 that grants telephone corporations the right to place new poles in the right-
of-way. California Public Utilities Code Section 7901 grants telephone corporations such
as Verizon Wireless a statewide right to place their equipment along any public right-of way, including new poles. The regulations should be revised to state that the design of a new pole without a streetlight
may be consistent with the height, size, and volume standards for SWFs in 47 CFR §
1.6002(l) and in CPUC General Order 95 (as applicable).
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21. Review and Approval Guidelines (Application and Review Guidelines WCFs Section E.1.b-c, p.16).
The requirements for an application to include a carrier’s map of existing and proposed
sites, and to describe the purpose of a WCF, are not consistent with federal law and must be eliminated. This Section violates Verizon’s rights under the TCA regarding the requirement to submit maps and an explanation of the communications services to be provided. (City of Auburn v. Qwest Corp., 260 F.3d 1160, 1176 and 1178 (9th Cir. 2001)
(city violated the TCA by requiring maps and a description of services to be provided;
agencies do not have the authority to request information regarding systems, plans or purposes for a WCF).) Further, under the TCA, the City cannot require Verizon to submit an explanation of the
communications services being provided, or otherwise attempt to control the technological
and operational aspects of wireless services. (See New York SMSA Ltd. Partnership v. Town of Clarkstown 612 F.3d 97, 105-106 (2nd Cir. 2012) (local requirements or preferences for certain or alternative technologies, and local attempts to control the
technological and operational aspects of wireless services, violate the TCA).)
These sections should be revised to eliminate requirements for carriers to submit maps of existing and proposed sites, and to describe the purpose of a WCF.
22. Review and Approval Guidelines (Application and Review Guidelines WCFs Section E.1.d, p.16). The requirement for a RF report with cumulative analysis of “all emitters in the vicinity” is vague, ambiguous and unworkable, and must be eliminated or revised.
Neither Verizon nor any carrier will know about “all” potential emitters of RF energy in the area around a facility. Further, the “vicinity” requirement is not quantified and is therefore subject to unreasonable or irrelevant application, especially as accepted scientific standards identify that RF energy dissipates significantly even over short distances.
This section should be revised to eliminate the requirement for carriers to submit a RF
report with cumulative analysis of “all emitters in the vicinity,” and only require RF reports consistent with FCC regulations.
23. Review and Approval Guidelines (Application and Review Guidelines SWFs Sections E.2.a-b, p.17). These sections should be revised to eliminate the requirement to explain the purpose or technical service objective, as well as a site selection process, for a proposed SWF.
G/D/B
Dec. 14, 2021 Item #16 Page 249 of 252
Under the TCA, the City cannot require Verizon to submit an explanation of the communications services being provided, or otherwise attempt to control the technological and operational aspects of wireless services. (See New York SMSA Ltd. Partnership v.
Town of Clarkstown 612 F.3d 97, 105-106 (2nd Cir. 2012) (local requirements or preferences for certain or alternative technologies, and local attempts to control the technological and operational aspects of wireless services, violate the TCA; see also City of Auburn v. Qwest Corp., 260 F.3d 1160, 1176 and 1178 (9th Cir. 2001) (city violated the TCA by requiring maps and a description of services to be provided; agencies do not have
the authority to request information regarding systems, plans or purposes for a facility).)
Further, in 2018 the FCC eliminated requirements that applicants show a “coverage gap”-based analytical approach for SWF applications and instead established a new national standard for what constitutes effective prohibition of service under the Act. (See FCC
Small Cell Order, ¶¶ 9-10, 21, 37 and 40 and notes 87-88 and 94.) The City cannot require Verizon Wireless to prove the necessity of new small cells, which the FCC determined are needed to enhance service and densify networks. The FCC also
disfavored dated service standards based on “coverage gaps” and the like (such as a
requirement to show technical service objectives or a description of wireless services proposed here) (FCC Small Cell Order, ¶¶ 37- 40.) Finally, in 2018, the FCC rejected requirements that “applicants … show that the proposed
facilities are the ‘least intrusive means’ for filling a coverage gap.” (FCC Small Cell Order
¶40 and note 94.) Accordingly, an application for a SWF is not required to comply with Section E.2.b’s requirement for an alternative site analysis. This regulation should therefore also be eliminated.
The regulations in these sections should be revised to eliminate the need for SWFs to
provide alternative site analyses, to show the location is the “least intrusive” design or
site, to provide coverage maps, or to explain the purpose of the facility or to show technical service objectives or a description of wireless services proposed .
24. Review and Approval Guidelines (Application and Review Guidelines SWFs Sections E.2.c, p.17). The requirement for a RF report with cumulative analysis of “all emitters in the vicinity” is vague, ambiguous, and unworkable, and must be eliminated or revised.
Neither Verizon nor any carrier will know about “all” potential emitters of RF energy in the area around a facility. Further, the “vicinity” requirement is not quantified and is therefore subject to unreasonable or irrelevant application, especially as accepted scientific standards identify that RF energy dissipates significantly even over short distances.
G/D/B
Dec. 14, 2021 Item #16 Page 250 of 252
This section should be revised to eliminate the requirement for carriers to submit a RF report with cumulative analysis of “all emitters in the vicinity,” and only require RF reports consistent with FCC regulations.
25. Review and Approval Guidelines (Application and Review Guidelines Section E.5, pp.17-18). This Section should add that the decision-maker findings shall also consider applicable
federal and state law, which may modify the considerations listed compared to the City
Code. 26. Review and Approval Guidelines (Application and Review Guidelines Section E.6, p. 18). This Section cannot require that an application to amend an existing WCF permit document that the WCF maintains the “smallest” or “most efficient” wireless antenna or equipment, and the requirement must be removed as unworkable and inconsistent with federal law.
Under the TCA, the City cannot require Verizon to submit an explanation of the communications services being provided and whether they are current technology, or otherwise attempt to control the technological and operational aspects of wireless services. (See New York SMSA Ltd. Partnership v. Town of Clarkstown 612 F.3d 97, 105-106 (2nd
Cir. 2012) (local requirements or preferences for certain or alternative technologies, and
local attempts to control the technological and operational aspects of wireless services, violate the TCA).) Also, the requirement in this Section to document a facility uses the “smallest” or “most
efficient” antennas and equipment should be removed as it is vague and ambiguous, and
without objective or reasonable standards. Further, wireless carriers have different network operations and objectives, and the “smallest” antennas and equipment may be feasible to be used by one carrier but not feasible to be used by another carrier.
The regulations in this section should be revised to remove the requirement for a WCF to
use or maintain the “smallest” or “most efficient” wireless antenna or equipment. 27. Review and Approval Guidelines (Application and Review Guidelines Section E.9, p. 19).
This Section regarding appointments for in-person submittals of applications must be applied in practice to allow timely, reasonable, and flexible opportunities for submittal appointments.
G/D/B
Dec. 14, 2021 Item #16 Page 251 of 252
Verizon would also like to recommend that the City consider an online or email application process, especially in light of current restrictions to diminish in person contact as imposed by state and federal law with regards to the pandemic, with such requirements constantly
changing. Verizon requests that these comments be include in the administrative record regarding the City of Carlsbad’s Draft Revisions to the Review and Operation Guidelines for Wireless Communication Facilities (City Council Policy No. 64).
Verizon also requests that the City modify its proposed Revisions to the Review and Operation Guidelines for Wireless Communication Facilities (City Council Policy No. 64) to reflect the comments stated above, and to align the City’s Policy with the requirements of applicable federal and State law.
G/D/B
Dec. 14, 2021 Item #16 Page 252 of 252
Tammy Cloud-McMinn
From:
Sent:
To:
Council Internet Email
Monday, December 13, 2021 1 :03 PM
City Clerk
Subject: FW: AMENDMENTS TO CITY COUNCIL POLICY NO. 6~11 Receive -Agenda Item# 11,e
For the Information of the:
qTYCOUNCIL
Date tJ./l!J/;;J CA ✓ CC~
From: Mark Graham <Mark@keepcellantennasaway.org>
Sent: Monday, December 13, 202112:01 PM
. CM ✓ACM /DCM (3) ./
To: Corey Funk <Corey.Funk@carlsbadca.gov>; Eric Lardy <Eric.Lardy@carlsbadca.gov>
Cc: Council Internet Email <CityCouncil@carlsbadca.gov>; Matthew Hall <Matt.Hall@carlsbadca.gov>; Keith Blackbulill
<Keith.Blackburn@carlsbadca.gov>; Peder Norby <Peder.Norby@carlsbadca.gov>; Priya Bhat-Patel <Priya.Bhat-
Patel@carlsbadca.gov>; Teresa Acosta <Teresa.Acosta@carlsbadca.gov>
Subject: AMENDMENTS TO CITY COUNCIL POLICY NO. 64
December 13, 2021
Dear Mr. Funk, Mr. Lardy, and Carlsbad City Council,
As you know this is item 16 on the agenda for the Council meeting scheduled for tomorrow afternoon,
December 14, at 3:00.
https:/ /www.carlsbadca.gov/home/showpublisheddocument/8597 /63 77 4 7245989667 522
I have some questions about the staff report and would appreciate your answers. Please acknowledge your
receipt of this message and respond at your earliest convenience.
1. What is the City's source of information for this statement, which is on page 572 in the staff report? This. is
false information according to Verizon.
"Locations: The 5G technology small wireless facilities typically provide coverage over
smaller areas than macro sites (approximately a 500-to 1,000-foot radius) and therefore
will likely require the installation of many such facilities throughout the city. Due to the
very small coverage areas, the proposed revisions exempt small wireless facilities from
the preferred location requirements contained in the current Policy No. 64 Section A."
This is contrary to what the industry says about the range of a 5G cell antenna. According to former Verizon
CEO Lowell McAdam the range of such an antenna is greater than 2,000'. Because of that there are far fewer
cell antennas needed to provide coverage in a city than if the range were only 500 to 1,000'. "We're now
designing the network for over 2,000 feet from transmitter to receiver, .... "
Here it is verbatim.
5:29 CNBC interviewer, "Can you get through trees? Can you get through leaves? Can you actually get
somewhere were you don't need cell sites ev, you know 25 feet from my house?"
1
5:38 Verizon CEO Lowell McAdam:
"Yeah well those were some of what I call the myths of millimeter wave, because no one thought that was p od,
and by the way we're the only ones that have it now so it's to their advantage to say it's no good."
"When we went out in these 11 markets, we tested for well over a year so we could see every part of foliage.
every storm that went through. We have now busted the myth that it has to be line-of-sight. It does not. We
busted the myth that foliage will shut it down. I mean that was back in the days when a pine needle would stop
it. That does not happen.
And the 200 feet from a home? We're now designing the network for over 2,000 feet from transmitter to
receiver, which has a huge impact on our capital need going forward. So those myths have disappeared."
6:25
Watch the video of the Lowell McAdam interview at 5 :27. It is easier to get to this point in the video on the
first link below.
https:/ /youtu. be/I Y Aufhlgkpl?t=3 28
https ://www.cnbc.com/video/2018/05/15/verizon-ceo-lowell-mcadam-5 g-future.html
2. Did staff call and speak with Elk Grove City Attorney Jonathan Hobbs about Elk Grove's cell antenna policy
and in particular the "Front Yard Rule" which is in the Elk Grove Municipal Code? What questions did you ask
Mr. Hobbs? What answers did Mr. Hobbs give you? ·
b. No small cell wireless communication facility shall be located
immediately adjacent to, nor immediately across the street from, a front yard
of any residential dwelling.
EGMC 23.94.050 A.6.b.
Here it is in context.
23.94.050 Development standards.
A. General Development Standards. Unless otherwise exempt pursuant to EGMC
Section 23.94.040, Exemptions, or as otherwise provided in an agreement approved by
the Elk Grove City Council pursuant to EGMC Section 23.94.035, Small Cell Wireless
Communications Facilities, the following general development standards shall apply to all
wireless communications facilities:
6. In a residential zoning district, the following development standards shall apply,
unless the applicant can demonstrate with substantial evidence satisfactory to the
approving authority that such siting limitation will materially inhibit personal
wireless service as to a particular small cell wireless communication facility.
a. No small cell wireless communication facility shall be placed within five hundred (300'
O") feet of another small cell wireless communications facility.
2
b. No small cell wireless communication facility shall be located immediately adjacent to,
nor immediately across the street from, a front yard of any residential dwelling.
Here is the signed version of City of Elk Grove Ordinance No. 19-2019, which approved a new cell antenna
policy which includes zoning code amendments and a master license agreement between the City and AT&~ /
Cingular. You can download it from this page.
City ofEG Ordinance 19-2019
https://www.codepublishing.com/CA/ElkGrove/#!/ElkGrove23/ElkGrove2394.html#23.94.050
3. Did staff call and speak with attorney Gail Karish from Best, Best and Krieger, LLC regarding the Front
Yard Rule and whether a city could adopt it? What questions did you ask Ms. Karish? What answers did sl-_e
give you?
As you may know my comment letter, included in the staff report, gave a quotation from Ms. Karish at a Ci1jy
Council meeting in Culver City in November, 2021. Ms. Karish said, in response to the Mayor's question, that
YES the City could adopt the front yard rule or a variation of it and NO, it would not create an effective
prohibition.
Culver City on November 8, 2021. However when asked by the Mayor whether the City could adopt the Frcmt
Yard Rule as in Elk Grove or something similar to it she said yes.
Ms. Karish's response was,
"I'm not familiar with the details of that particular rule although I do understand what it
um encompasses, or the, the policy behind it. .... Um so, I just want to go back and
mention. I did mention in the, the uh, presentation that you can regulate aesthetics. And
so to the extent that a rule like a Front Yard Rule, however formulated, ah is directed
towards avoiding unsightly installations directly in front of houses um I'm sure um
looking at the definition and working on the terminology we could probably come up
with a rule that would uh address that concern uh whether its exactly how it was uh
phrased in, in Elk Grove or in some other way. Uh you you can regulate aesthetics and so
if there are uh you know certain placements within the right of way that would be
aesthetically not pleasing you can certainly uh have a standard that would direct
applicants not to place their facilities in front of picture windows, for example, um or in
front of a home. And that may well, uh as long as there are other alternatives available in
the area that would probably uh pass muster under the FCC regulations and Federal law."
(1 :20:47 of the City Council meeting video)
Ms. Karish also participated in a City Council meeting in Malibu on December 9, 2020 during
which the City Council adopted a version of Elk Grove's Front Yard Rule. Ms. Karish advised
the City Council on the specific wording of that policy, which was," D. Placements shall not be
in front of dwelling units or schools." (City of Malibu Resolution 20-65, section 5.D.)
That is on page 800 of the staff report.
4. Mr. Hobbs obviously believes that the Front Yard Rule does not create an effective prohibition. Why does
staff disagree with Mr. Jonathan Hobbs?
3
5. Ms. Karish obviously believes that the Front Yard Rule does not create an effective prohibition. Why does
staff disagree with Ms. Gail Karish?
6. The staff report for this Council meeting is 1,143 pages long. It includes a 252 page staff report on agenda
item 16, which begins on page 569. The ONLY analysis and discussion of the Front Yard Rule by staff in the
staff report is on page 710 and it says:
"Some public comments requested a prohibition on SWFs in the ROW adjacent to a residential front yard
setback. Staff does not recommend this as it would likely result in a prohibition of service. A better option
would to apply the location preferences in Section A to SWFs as described below."
Questions about this.
6.a. The Front Yard Rule is not a setback. It does not contain the word "setback". Why did staff insert the
word "setback" in its discussion of the Front Yard Rule?
6.b. What is the factual basis for the staffs conclusory statement that, "Staff does not recommend this as it
would likely result in a prohibition of service."? Is there any factual basis?
6.c. What is an "effective prohibition" in staffs opinion? This is from the Telecommunications Act of 199E, as
we know. Staff does not appear to understand what an effective prohibition is. Please state your understanding
of it.
6.d. What is the staffs analysis of the Front Yard Rule as it would apply in Carlsbad? How does this analyss
show that the Front Yard Rule would create an effective prohibition? ·
6.e. Elk Grove has had the Front Yard Rule since August 28, 2019. It has not created an effective
prohibition. Why does staff believe it would create an effective prohibition in Carlsbad?
6.f. Malibu has had the Front Yard Rule, a variation of it, since December 9, 2020. It has not created an
effective prohibition. Why does staff believe it would create an effective prohibition in Carlsbad?
7. The Front Yard Rule and a policy of location preferences are not mutually exclusive. That is, the City ccmld
adopt and use both. Do you agree? If staff believes they are mutually exclusive please explain your analysi3
and reasoning and provide the supporting facts.
8. At one point about 145 Carlsbad residents signed a petition opposing cell antennas on city streets. I
mentioned this petition in my public comments which is on page 798 of the staff report. Irene Tsutsui
mentioned the petition in her public comment which is on page 777 of the staff report. She said that 150 -2iD0
residents signed the petition. I recommended that the City find those petitions (page 801) Did you find therr::?
9. Recommendation 6 on page 710 of the staff report is for an annual report. The staffs response is.
Staff recommends this option. Reporting
requirements have been included in other
jurisdictions. The annual report could ask for
verification that facilities are within FCC limits.
The following language could be added to Policy 64:
"Prior to July 1 of each calendar year, each Small
Wireless Facility provider should provide
4
documentation identifying the location of each
facility in the right-of-way within the city; including
those approved but not built.
I do not see such a requirement in the City's proposed revisions to policy 64. Am I missing it? Is the omission
of this requirement intentional?
10. Insurance and indemnification. Ms. Irene Tsutsui recommended that the City include a requirement for
insurance for each cell antenna in her letters that begin on page 7 54 of the staff report: She showed the City of
Encinitas policy on page 767. Although the staff report does mention insurance on pages 711 and 727-728 it
falls far short of what Ms. Tsutsui has recommended. In the areas of indemnification, the amount of insurance,
and also having insurance against injury to the body caused by exposure to cell antenna electromagnetic
radiation. What is the reason for this? Why are the insurance dollar amounts so small?
Many carriers have insurance policies that exclude coverage for a "pollutant" and define "pollutant" to inch.de
electromagnetic radiation, electromagnetic radiation, cell antenna and cell tower radiation, etc. This means :hat
such a policy does not cover injury and damages from cell antenna radiation. Will the City require an insur2nce
policy that does NOT have such an exclusion?
11. Fire.
The insurance amounts in the commercial general liability insurance policy are way too small to cover the
possible damage from a fire caused by a cell antenna, $2 million per incident and $4 million aggregate. That
could be a few houses. We have seen enormous fires in California in the last few years. Why aren't the
insurance amounts higher?
The staff report also says, "An option is included in Exhibit 4 to add
requirements for insurance and
indemnification for WCFs and SWFs not
subject to a_master license agreement."
Where is that? The staff heeds to recommend this to the Council.
12. This is a 3 part question.
12.a. Again on the Front Yard Rule how many City owned street light poles are there in the City of Carlsbad
that are NOT "immediately adjacent to or immediately across the street from the front yard of a residential
dwelling"? Have you looked at them on a map of Carlsbad?
12.b. Based on the assumption of a 2,000' range of a cell antenna would a carrier be able to provide personal
wireless service in the city by locating its cell antennas on some of those street light poles?
12.c. Based on the assumption of a 500 -1,000' range of a cell antenna would a carrier be able to provide
personal wireless service in the city by locating its cell antennas on some of those street light poles?
13. What is the staffs understanding of the relationship between a lower frequency cell antenna, often referred
to as 4G, and a higher frequency cell antenna, often referred to as 5G? Do the 5G cell antennas require the
presence of 4G cell antennas? Can the 5G cell antennas work without the presence of 4G cell antennas?
5
Tammy Cloud-McMinn
From:
Sent:
To:
Subject:
Attachments:
Irene <irenegdnight@earthlink.net>
Tuesday, December 14, 2021 10:27 AM
All Receive -Agenda Item# 1JR
For the Information of the:
__ CJ.TY. ,COUNCIL
Date&/1 '1/lJCA _cc_
CM _ACIOI -rs@M tot_
Corey Funk; Eric Lardy; Matthew Hall; Peder Norby; Keith Blackburn; Priya Bhat-Pat~;
Teresa Acosta; Celia Brewer; City Clerk
REVISION/AMENDMENTS TO CARLSBAD CITY COUNCIL POLICY NO. 64 MEETING
12/14 ITEM 16
image.png; image.png; image.png; image.png; image.png; image.png; image.png;
image.png
Dear Mr. Lardy, Mr. Funk and Carlsbad City Council,
Re Item 16 on the agenda for the Council meeting scheduled for this afternoon, December 14,
at 3:00 pm.
( ( (https://www.carlsbadca.gov/home/showpublisheddocument/8597 /637747245989667!:-22
(https://www.carlsbadca.gov/home/showpublisheddocument/8597 /637747245989667522:))))
I am submitting the following comments regarding the revisions to Policy 64. If I cannot be at
the meeting today due to a prior appointment, please include my comments for the meeting
records.
1) Pages 164 & 165 of 252; Page 143 Exhibit 4 Change distance required for determining
location of other poles from 500 ft to 200 ft.
The draft policy includes a requirement that applications consider other more preferred po[e
types within 500 feet of the proposed location. During public review, one comment
recommended that this be modified to 200 feet.
"Staff recommendation is neutral. Small Wireless Facilities provide service to smaller areas and
are often used to fill capacity needs rather than provide broad coverage AT&T In Section. c.:...c
regarding determinations of whether a more preferred support pole type exists nearby,
reduce the radius from 500 ft. to 200 ft. for, as a 500 ft. radius is too far in terms of ruling out
alternatives for a SWF, which may only propagate 800 ft.11
Re AT& T's request to reduce the distance in seeking more "preferred pole types" from 500 =t
to 200 ft. is overly greedy! I am both deeply perplexed and secondly shocked to see that staff
is taking a neutral position. AT& T's contention that a 500 ft radius is too far is not
substantiated by any facts or supporting maps or analysis. My impression is industry has
moved well beyond 500 ft as an acceptable range so why would you even consider such a
drastic change?
1
According to former Verizon CEO Lowell McAdam the range of such an antenna is greater t 1an
2,000'. Because of that there are far fewer cel l antennas needed to provide coverage in a ci ty
than if the range were only 500 to 1,000'. "We're now designing the network for over 2,000
feet from transmitter to receiver, .... 11
After our November zoom meeting with Eric Lardy and Corey Funk, our group made it clea r we
wanted restrictions on placement of 4G/5G smart cell wireless facilities in residential
neighborhoods. This change would open up the floodgates for unwanted installations
exposing us to even greater hazards not to mention lower property values. While other cit es
are requiring 500 to 1500 setbacks, what is Carlsbad doing but going in the wrong directioni?!
Also, I wonder what other undesirable loopholes telecoms would bring up as a r.esult of this
change, and my huge concern is its effect on OTHER conditions laid out in the revised Policy
64. What else is AT&T or other telecoms going to demand once you set this dangerous
precedent in your policy?! Have you given any thought to how it could be used legally to open
that door? Why even go there?!
2) FRONT YARD RULE There was apparently no inquiry made with the Elk Grove city officials
before dismissing the Front Yard Rule. There does not seem to be a deep enough grasp and
understanding that this rule is NOT a setback.and it can be legally implemented giving
telecoms alternative location choices other than blocking them outright with 1500 foot
setbacks.
Please refer to the article I am posting here which is the first research study I have seen to
date that rationally and thoughtfully poses the possibility there is a connection between the
spread of Covid-19 and 5G. I have up to now refrained from sharing the principle behind this
concern as it is admittedly up to now speculative. However, there is mounting data and ma ps
that something is making people sicker wherever 5G is more prominent. Wuhan, China is t he
prime example where 10,000 towers were turned on just weeks prior to the Covid outbrea~:.
Kirkland, WA is considered ground zero in the USA where a nursing home incurred 30 deatt-s.
Bill Gates' company called Pivotal installed a first of its kind 11 built-in 11 5G system inside the
nursing home right before the outbreak. The research study is gaining
traction as I have seen it analyzed on other web sites. The authors are so concerned, they are
calling for a moratorium on 5G. Considering the recent court ruling criticizing FCC for ignorrng
al the peer reviewed studies pointing to the radiation harm from EMF/RF transmission signa ls
and the recent lawsuit won by the teacher who claimed serious disability to her wireless
radiation exposure,, the city is best served by heeding the authors recommendation to follow
the Precaution Principle which I have repeatedly advocated It is not well served by going in
the OPPOSITE direction. There is a growing body of evidence as seen through microscope
analysis of the blood of sick patients, that oxygen depletion is occurring on an unprecedented
level. Dr Cameron Kyle-Siddell caught it in patients last year.
2
Telecoms will not deny the connection of oxygen depletion to certain EMF/RF signal as they
know which frequencies yield the best reception. Oxygen attenuates at a measurable level at
60 Ghz; the blood thickens and becomes "sticky" and this phenomenon is being seen in Cm,id
patients which is atypical for a virus symptom. I have done my own research and believe trere
is a connection, not necessarily causal but concerning enough to warrant taking a
Precautionary Principle approach.
ARTICLE:
Evidence for a connection between coronavirus disease-19 and exposure to radiofrequenc\i
radiation from wireless communications including
5G ... (https://urldefense.com/v3/_https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8580522)
/_;! !E_ 4xU6:-vwMWK-Q!-NGZNkE4bZG0HUnDSFIRv9IjWHmYloOSpBLkunhQulgf2DO95-
4Is7uGOUYXhtixYFs$ )
DR. CAMERON KYLE-SIDDELL"! am a physician who has been working at the bedside of COVlD+
patients in NYC. I believe we are treating the wrong disease and that we must change what we
are doing if we want to save as many lives as possible. " ( (
(https://urldefense.com/v3/_https://www.realclearpolitics.com/video/2020/04/08/dr _ca71e
ron_kyle-sidell_does_covid-
19_really_cause_ards_acute_respiratory_distress_syndrome.html_; ! !E_ 4xU6-vwMWK-Q!-
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(https://ur1defense.com/v3/_https://www.youtube.com/watch?v=k9GYTcS3r2o_; ! !E_ 4xJ6-
vwMWK-Q!-NGZNkE4bZG0HUnDSFIRv9IjWHmYloOSpBLkunhQulgf2DO95-
4Is7uGOUYXYuJvVjM$)) THE MICROWAVE ABSORPTION SPECTRUM OF OXYGEN -Novemb=r
19, 1948 -SG Genocide ( (https://urldefense.com/v3/_https://stop5g.cz/us/blood-clots-
inability-to-breathe-and-60-ghz-the-microwave-absorption-spectrum-of-oxygen-november-19-
1948-Sg-genocide_; ! ! E_ 4xU6-vwMWK-Q!-
NGZN kE4bZG0H UnDSFIRv9IjWH mYloOSpBLkunhQulgf2DO95-4Is7uGOUYXLuXfYuw$
(https://urldefense.com/v3/_https://frankreport.com/2020/03/22/ground-zero-for-inside:-
the-build ing-Sg-was-a lso-grou nd-zero-for-coronavirus-in-the-usa))))) )/_; ! ! E_ 4xU6-vwMWK-
Q!-NGZN kE4bZG0H Un DSFI Rv9IjWH m YloOSpBLku n hQu lgf2DO95-4Is7uGOUYXgONGq RY$ 60
GHz Health Risks (https://urldefense.com/v3/_https://www.electrosensitivity.co/60-ghz-
health-risks.html_; ! ! E_ 4xU6-vwMWK-Q!-
NGZNkE4bZG0HUnDSFIRv9IjWHmYloOSpBLkunhQulgf2DO95-4Is7uGOUYX69yX7rk$)
3). Page 161 FIRE RISK
4 Irene Tsutsui 2 Add a statement that the City ensures WCF placement in a way that does not
necessarily cause adverse impacts on aesthetics, reduction in property values or cause dam3ge
as a result of such things as insufficient fall zones, structural failures, electrical fires or other
3
related adverse events. See Irene Tsutsui Letter 2 attached to this table for additional info and
suggested language.
"The draft policy includes requirements to limit impacts to aesthetics and safety requirements,
and includes proximity to residential uses as a factor in the decision. All wireless facilities w II
be reviewed by the city's Fire Prevention Bureau. Carlsbad Fire Prevention has not seen anr1
concerns of fire within our Wild land Urban Interface areas due to cellular antennas, but rather
due to electrica·I transmissions lines. Statewide, the fire prevention industry's efforts have
been focused on the area of fire risk due to electrical transmissions lines. With this in mind,
the City recognizes potential risks of downed electrical facilities that may occur by the addition
of more equipment to utility poles. Accordingly, all applications for wireless communicatiors
facilities, including small wireless facilities, are reviewed by the Carlsbad Fire Prevention
Bureau. The California Fire Code addresses relative code concerns regarding the installation of
wireless communication facilities throughout the state, and Fire Prevention ensures that these
installations meet state code where applicable. All applications will also require building and
safety review to evaluate compliance with structural support and loading standards"
As I pointed out in my previous correspondence, the Poinsettia fire in 2014 caused $23 million
in damages. Dismissing Carlsbad as outside the hazardous zone conveniently overlooks the
fact that the city itself has declared 11fire11 as the number one hazard .
. Did you inquire into my concern about the smart meter "varistor" component and surge issues
making smart cell facilities vulnerable to electrical fires that Susan Foster mentioned in her
letter to Malibu officials which I submitted in prior correspondence? I post the excerpt
herewith from her letter. I did not see any verbage that addressed the electrical fire hazard
issue aside from a staff statement that Carlsbad Fire Prevention would review permits.
a) QUESTION: Where is it stated that the Carlsbad Fire Prevention will review permits?. I die
not see it in the revised Policy 64.
b) Here is Susan Foster's technical description of the risk inherent in the smart meter
'·'varistor" component of smart cell towers as well as the surge protection and on/off process
triggering fire issues. Please review her discussing the risks in the letter she wrote to the
Malibu mayor and city council. ( ( (
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EXCERPT:
"The concerns regarding these towers are many and one of my greatest concerns is fire. This is
a safety concern and therefore is on the table for discussion and action if necessary, according
to even the strictest FCC interpretation. I wrote the fire section for the Encinitas Ordinance
under the oversight of Ariel Strauss and would be happy to help Malibu borrow from the
Encinitas Ordinance. We took from and added to ·the existing Sebastopol Ordinance which has
an excellent fire section. I would invite you to take from what we have already researched and
incorporated into existing ordinances."
"I served as a consultant on the Encinitas Ordinance, having lived in neighboring Rancho Santa
Fe for 32 years. We learned from experts we sought out that there are several fire risks
inherent in the cell towers themselves. One risk has to do with smart meters within the 4G
towers and some of the SG towers. 4G is needed for SG to work and unless all the carriers are
functioning under a flat rate system, electric usage is measured by a smart meter within a
large number of cell towers.
You may already be very well aware that smart meters can cause fires. What we learned from
our experts was that under certain circumstances the surge protection in smart meters is
inadequate. Smart meters utilize what is called a "varistor" as surge protection for up to
around 350 V. That is the level of surge protection you would have typically find in a televis on
set. It is inadequate for smart meters in the following circumstances. Lightning strikes cause
surges of voltage in the multi-thousands of volts. In those cases, the varistor would be
inadequate. Another time electrical surges are an issue are when 1) power has been lost and
restored; and 2) during Santa Ana or El Diablo wind events, utilities may decide to turn pow,er
off and on in an effort to avoid sparks that could cause a fire.
In a dangerous twist of irony, the act of turning the power off and back on again may trigger
surges the varistor cannot hold back in smart meters within cell towers. In a small percentage
of the cases where this happens, likely 1% -2%, electrical fires can be triggered.
Another circumstance in which electrical fires can be triggered almost 100% of the time is if
the "connector" linking the power supply to the antenna itself is not replaced. This part should
be replaced every 3 to 5 years but certainly closer to the 3-year mark if the towers are expased
to salty air; this describes part of your County. Our electrical engineering expert said that close
to 100% of the time an electrical fire will ensue if connectors are allowed to corrode and the
electrical supply is not held in place."
"The 2007 Malibu Canyon Fire was determined to be caused by wireless equipment on a utlity
pole. I don't have to remind you of the tragedy of that fire. I do not have a high degree of
confidence that there has been a substantive change in maintenance among the wireless
carriers."
5
11 1 believe for this reason and so many others that indemnification by the wireless carriers as
well as high dollar amounts of insurance per instance and in the aggregate should be
considered for Malibu. You have the right to ask for both. Lloyd's of London and Swiss Re have
long refused to indemnify for RF radiation harms. These leading insurance companies are
concerned about the eventual litigation that will come when the law has been adjusted to
favor citizens/consumers as opposed to telecommunications companies. Thus, the telecom
industry is self-insured and you can make of that what you will. I believe Encinitas was able to
locate, through an insurance broker, a pollution insurance company that did cover for RF
radiation."
The increase of smart cell wireless facilities in our neighborhood are bound to pose a hazard
one way or the other. The equipment is composed of any number of complex parts which, if
defective, will cause problems including electrical fires. I do not think staff has given this
matter adequate consideration as far as the overall risk the proliferation of such facilities Will
raise throughout the city of Carlsbad. Some kind of policy statement recognizing the city is
aware of the overall risk of adding smart cell facilities with steps taken to address it including
insurance and indemnification,, and implementing annual reports with outside expert
consultation on a regular basis would go a long way to assure citizens their safety is being
considered .. Meanwhile will someone be making inquiries into the 11varistor11 issue?
Encinitas is likely a good source of information on that since Ms. Foster helped them with tt-eir
fire verbage.
c) Page 162 ridgeline verbage
Irene Tsutsui 2 Policy 64 should prohibit WCFs from being installed on or near a ridgeline or
slope abutting a chapparal populated area due to fire risk. See Irene Tsutsui Letter 2 attached
to this table for additional info and suggested language.
"Small wireless facilities are unlikely'to be proposed on ridgelines or in open space areas due
to the more limited range. Macro WCFs can be proposed in these areas and will go through
the existing permit process in Policy 64, including review by the city Fire Prevention Bureau.]'
I call your attention to the following revision verbage:
p 7 of 22 (p125) 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.
6
If as you say a small wireless facility is unlikely to be proposed on ridgelines or in open space,
why don't you just eliminate the words "unless it is satisfactorily located and/or screened so it
is hidden or disguised."??
Malibu's language is very specific as follows: (see attachment) Page 201 of 252.(first
attachment) 11 Ridgelines. No personal wireless service facility shall be placed on or near a
ridgeline.11 (first attachment)
d) Page 16 of 252 (Attachment #6( lists Preferred Locations and Discouraged Locations.
CAN YOU PLEASE ADD "slopes abutting chaparral populated areas" as item j (Preferred) and
item g (Discouraged) or wherever you think it is appropriate to protect homes at greater risk of
a fire hazard.
Aside from the unresolved issues with smart meters in connection with smart cell wireless
facilities posing a potential electrical fire hazard., it is important to keep the risk away from
homes abutting chaparrel populated areas. Isn't one way to do that is by eliminating smart :ell
facilities on or near ridgelines? What kind of assurance can I give the homeowners in my
community who came very close to having their homes burned down in the 2014 Poinsettic
fire? Will the city make an effort to keep smart cell wireless facilities far enough away from our
slopes where Santa Ana winds caused fast-moving fires in 2014?
4) PUBLIC NOTICE-
See attachment #2 page 212 of 252
(Malibu ord477 U page 10 of 16) Malibu-ord-unsigned-477U (
(https://ur1defense.com/v3/_http://www.keepcellantennasawayfromourelkgrovehomes.org/
wp-content/uploads/2020/12/Malibuord-unsigned-4 77U.pdf_; ! ! E_ 4xU6-vwMWK-Q!-
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See attachment #3 Page 206 of 252 per Checklist for Municipal Codes from Americans for
Responsible Technology following recommended conditions:
The code requires applicant to provide to all homeowners within 500 feet of the proposed
installation notification by certified mail.
The code requires the applicant to post conspicuous signs of pending applica9ons at all
proposed sites.
7
All I am seeing in the staff report is the requirement for the applicant to give notice but there
are no details.other than the 300 foot distance parameter. I did not see any specific
conditions in the revised language including time deadlines and methods of mailing .. What
kind of conditions are you going to specify so that citizens can address those conditions? The
Malibu language on public notice is very specific and the Municipal Code Checklist
recommends mailing by certified mail and that conspicuous signs be posted both of which 2re
very reasonable conditions. It is important to have specific conditions on this very important
issue.
5) ANNUAL REPORTS
See attachment #4 Page 142 of 252
a) My one strong recommendation is you change the word "should" to "shall" provide
documentation identifying the location ... " otherwise they have no incentive or requirement to
actually do this task.
This provision is meaningless, however, without the requirement to verify that the facilities
are within FCC limits. Without this requirement you have no recourse to pursue correcting any
misrepresentations. Attorney ndrew Campanelli stated that independent tests should be
done, otherwise how are you ·going to be assured what telecoms represent is accurate? He
says the vast majority of time the data they include is not accurate and cannot be backed up.
C
The city will need probative evidence in a court of law if you have to take steps to enforce
compliance. He said the courts will not except any data or information that cannot be backEd
up with probative evidence so the burden of proof should focus first on making
telecoms,incentivized to comply.to alleviate your burden.
b) attachment #5 Page 141 of 252 Giving your recommendation to hire "outside experts" is a
.big plus and would give the City a lot of flexibility in the enforcement arena. It's the smart
thing to do as a way of making sure smart cell wireless facilities are always up to date and thus
made safer and more reliable and less prone to start electrical fires.
6) INSURANCE AND INDEMNIFICATION
See attachment #7-and #8
Re staff report: "An option is included in Exhibit 4 to add requirements for insurance and
indemnification for WCFs and SWFs not subject to a master license agreement."
Staff needs to make recommendations to the Council along the lines of indemnification
verbage in the attachment #8 (Page 199 of 252).
8
Current insurance'is not adequate. Lloyds of London won't even insure any wireless/cellula--
technology devices calling them the "new asbestos." The $2 million per incident and $4
million aggregate is way too inadequate. Fire is a huge risk in Carlsbad as demonstrated in
2014 with the fast-moving fires. See below for my prior submitted suggested verbage and their
sources.
Policy 64 Item E. Application and Review Guidelines (Pages 16 through 20) INSURANCE AND
INDEMNIFICATION, California Coastal Commission and NEPA permits Application and Review
Guidelines (pages 16through 20) (
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Items 16, 17, 18 and 19) Add as item 17:
"Insurance.The applicant shall maintain current at all times liability and property insurancefor
each small cell installation in the Public Right Way. Prior to the issuance of a personal wirefoss
service related permit,the applicant shall pay for and provide a copy of a policy of General
Liability Insurance issued by an "A" rated Insurance company and cover the named applicant
and each operator of an antenna if different than the applicant. Each Such policy shall be a
claims made policy, listing the applicant as a primary insured, and the City as an additional
insured, in the minimum amount of $2,000,000 / $25,000,000. The policy shall not have a
pollution or other exclusion which excludes injuries or damages from EMF/RFexposures. A true
and correct copy of the policy of insurance shall constitute proof of insurance required by this
Subsection."
Encinitas also has an extensive section on insurance:
( (https://urldefense.com/v3/_https://ed84ae68-328e-42f4-847a-
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4Is7uGOUYXw8BSIKU$)
Please acknowledge your receipt of this message and respond at your earliest convenience.
The Council meeting is this afternoon at 3:00pm.
Sincerely,
9
Irene Tsutsui
Carlsbad Constituent
CAUTION: Do not open attachments or click on links unless you recognize the sender and
know the content is safe.
10
Your email has been received and was forwarded to the City Clerk for distribution.
Sincerely,
, Ci1;yof
Carlsbad
Corey Funk, AICP
Associate Planner
Planning Division
Community Development Department
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008
http:ljwww .carlsbadca.gov
760-602-4645 I corey.funk@carlsbadca.gov
From: Mark Graham <Mark@keepcellantennasaway.org>
Sent: Monday, December 13, 202112:01 PM
To: Corey Funk <Corey.Funk@carlsbadca.gov>; Eric Lardy <Eric.Lardy@carlsbadca.gov>
Cc: Council Internet Email <CityCouncil@carlsbadca.gov>; Matthew Hall <Matt.Hall@carlsbadca.gov>;
Keith Blackburn <Keith.Blackburn@carlsbadca.gov>; Peder Norby <Peder.Norby@carlsbadca.gov>; Priya
Bhat-Patel <Priya. Bhat-Patel@ca rlsbadca .gov>; Teresa Acosta <Teresa .Acosta@ca rlsbadca .gov>
Subject: AMENDMENTS TO CITY COUNCIL POLICY NO. 64
2
December 13, 2021
Dear Mr. Funk, Mr. Lardy, and Carlsbad City Council,
As you know this is item 16 on the agenda for the Council meeting scheduled for tomorrow
afternoon, December 14, at 3:00.
https://www.carlsbadca.gov/home/showpublisheddocument/8597 /63 77 4 7245989667 522
I have some questions about the staff report and would appreciate your answers. Please
acknowledge your receipt of this message and respond at your earliest convenience.
1. What is the City's source of information for this statement, which is on page 572 in the staff
report? This is false information according to Verizon.
"Locations: The 5G technology small wireless facilities typically provide coverage over
smaller areas than macro sites (approximately a 500-to 1,000-foot radius) and therefore
will likely require the installation of many such facilities throughout the city. Due to the
very small coverage areas, the proposed revisions exempt small wireless facilities from
the preferred location requirements contained in the current Policy No. 64 Section A." -
This is contrary to what the industry says about the range of a 5G cell antenna. According to
former Verizon CEO Lowell McAdam the range of such an antenna is greater than
2,000'. Because of that there are far fewer cell antennas needed to provide coverage in a city
than if the range were only 500 to 1,000'. "We're now designing the network for over 2,000 feet
from transmitter to receiver, .... "
Here it is verbatim.
5:29 CNBC interviewer, "Can you get through trees? Can you get through leaves? Can you
actually get somewhere were you don't need cell sites ev, you know 25 feet from my house?"
5:38 Verizon CEO Lowell McAdam:
3
"Yeah well those were some of what I call the myths of millimeter wave, because no one thought
that was good, and by the way we're the only ones that have it now so it's to their advantage to
say it's no good."
"When we went out in these 11 markets, we tested for well over a year so we could see every
part of foliage, every storm that went through. We have now busted the myth that it has to be
line-of-sight. It does not. We busted the myth that foliage will shut it down. I mean that was
back in the days when a pine needle would stop it. That does not happen.
And the 200 feet from a home? We're now designing the network for over 2,000 feet from
transmitter to receiver, which has a huge impact on our capital need going forward. So those
myths have disappeared."
6:25
Watch the video of the Lowell McAdam interview at 5:27. It is easier to get to this point in the
video on the first link below.
https://youtu.be/lYAufhlgkpI?t=328
https://www.cnbc.com/video/2018/05/15/verizon-ceo-lowell-mcadam-5g-future.html
2. Did staff call and speak with Elk Grove City Attorney Jonathan Hobbs· about Elk Grove's cell .
antenna policy and in particular the "Front Yard Rule" which is in the Elk Grove Municipal
Code? What questions did you ask Mr. Hobbs? What answers did Mr. Hobbs give you?
b. No small cell wireless communication facility shall be located
immediately adjacent to, nor immediately across the street from, a front yard
of any residential dwelling.
EGMC 23.94.050 A.6.b.
Here it is in context.
23.94.050 Development standards.
A. General Development Standards. Unless otherwise exempt pursuant to EGMC
4
Section 23.94.040, Exemptions, or as otherwise provided in an agreement approved by
the Elk Grove City Council pursuant to EGMC Section 23.94.035, Small Cell Wireless
Communications Facilities, the following general development standards shall apply to
all
wireless communications facilities:
6. In a residential zoning district, the following development standards shall apply,
unless the applicant can demonstrate with substantial evidence satisfactory to the
approving authority that such siting limitation will materially inhibit personal
wireless service as to a particular small cell wireless communication facility.
a. No small cell wireless communication facility shall be placed within
five hundred (500' O") feet of another small cell wireless communications
facility.
b. No small cell wireless communication facility shall be located
immediately adjacent to, nor immediately across the street from, a front
yard of any residential dwelling.
Here is the signed version of City of Elk Grove Ordinance No. 19-2019, which approved a new
cell antenna policy which includes zoning code amendments and a master license agreement
between the City and AT&T/ Cingular. You can download it from this page.
City ofEG Ordinance 19-2019
https://www.codepublishing.com/CA/ElkGrove/#!/ElkGrove23/ElkGrove2394.html#23.94.050
3. Did staff call and speak with attorney Gail Karish from Best, Best and Krieger, LLC
regarding the Front Yard Rule and whether a city could adopt it? What questions did you ask
Ms. Karish? What answers did she give you?
As you may know my comment letter, included in the staff report, gave a quotation from Ms.
Karish at a City Council meeting in Culver City in November, 2021. Ms. Karish said, in
response to the Mayor's question, that YES the City could adopt the front yard rule or a variation
of it and NO, it would not create an effective prohibition.
Culver City on November 8, 2021. However when asked by the Mayor whether the City could
adopt the Front Yard Rule as in Elk Grove or something similar to it she said yes.
Ms. Karish's response was,.
5
"I'm not familiar with the details of that particular rule although I do understand what it
um encompasses, or the, the policy behind it. .... Um so, I just want to go back and
mention. I did mention in the, the uh, presentation that you can regulate aesthetics. And
so to the extent that a rule like a Front Yard Rule, however formulated, ah is directed
towards avoiding unsightly installations directly in front of houses um I'm sure um
looking at the definition and working on the terminology we could probably come up
with a rule that would uh address that concern uh whether its exactly how it was uh
phrased in, in Elk Grove or in some other way. Uh you you can regulate aesthetics and so
if there are uh you know certain placements within the right of way that would be
aesthetically not pleasing you can certainly uh have a standard that would direct
, applicants not to place their facilities in front of picture windows, for example, um or in
front of a home. And that may well, uh as long as there are other alternatives available in
the area that would probably uh pass muster under the FCC regulations and Federal law."
(1:20:47 of the City Council meeting video)
Ms. Karish also participated in a City Council meeting in Malibu on December 9, 2020 during
which the City Council adopted a version of Elk Grove's Front Yard Rule. Ms. Karish advised
the City Council on the specific wording of that policy, which was," D. Placements shall not be
in front of dwelling units or schools." (City of Malibu Resolution 20-65, section 5.D.)
That is on page 800 of the staff report.
4. Mr. Hobbs obviously believes that the Front Yard Rule does not create an effective
prohibition. Why does staff disagree with Mr. Jonathan Hobbs?
5. Ms. Karish obviously believes that the Front Yard Rule does not create an effective
prohibition. Why does staff disagree with Ms. Gail Karish?
6. The staff report for this Council meeting is 1,143 pages long. It includes a 252 page staff
report on agenda item 16, which begins on page 569. The ONLY analysis and discussion of the
Front Yard Rule by staff in the staff report is on page 710 and it says:
"Some public comments requested a prohibition on SWFs in the ROW adjacent to a residential
front yard setback. Staff does not recommend this as it would likely result in a prohibition of
6
service. A better option would to apply the location preferences in Section A to SWFs as
described below."
Questions about this.
6.a. The Front Yard Rule is not a setback. It does not contain the word "setback". Why did staff
insert the word "setback" in its discussion of the Front Yard Rule?
6.b. What is the factual basis for the staffs conclusory statement that, "Staff does not
recommend this as it would likely result in a prohibition of service."? Is there any factual basis?
6.c. What is an "effective prohibition" in staffs opinion? This is from the Telecommunications
Act of 1996, as we know. Staff does not appear to understand what an effective prohibition
is. Please state your understanding of it.
6.d. What is the staffs analysis of the Front Yard Rule as it would apply in Carlsbad? How does
this analysis show that the Front Yard Rule would create an effective prohibition?
6.e. Elk Grove has had the Front Yard Rule since August 28, 2019. It has not created an
effective prohibition. Why does staff believe it would create an effective prohibition in
Carlsbad?
6.f. Malibu has had the Front Yard Rule, a variation of it, since December 9, 2020. It has not
created an effective prohibition. Why does staff believe it would create an effective prohibition
in Carlsbad?
7. The Front Yard Rule and a policy of location preferences are not mutually exclusive. That is,
the City could adopt and use both. Do you agree? If staff believes they are mutually exclusive
please explain your analysis and reasoning and provide the supporting facts.
8. At one point about 145 Carlsbad residents signed a petition opposing cell antennas on city
streets. I mentioned this petition in my public comments which is on page 798 of the staff
report. Irene Tsutsui mentioned the petition in her public comment which is on page 777 of the
7
staff report. She said that 150 -200 residents signed the petition. I recommended that the City
find those petitions (page 801) Did you find them?
I
9. Recommendation 6 on page 710 of the staff report is for an annual report. The staffs
response is.
Staff recommends this option. Reporting
requirements have been included in other
jurisdictions. The annual report could ask for
verification that facilities are within FCC limits.
The following language could be added to Policy 64:
"Prior to July 1 of each calendar year, each Small
Wireless Facility provider should provide
documentation identifying the location of each
facility in the right-of-way within the city; including
those approved but not built.
I do not see such a requirement in the City's proposed revisions to policy 64. Am I missing
it? Is the omission of this requirement intentional?
10. Insurance and indemnification. Ms. Irene Tsutsui recommended that the City include a
requirement for insurance for each cell antenna in her letters that begin on page 754 of the staff
report. She showed the City of Encinitas policy on page 767. Although the staff report does
mention insurance on pages 711 and 727-728 it falls far short of what Ms. Tsutsui has
recommended. In the areas of indemnification, the amount of insurance, and also having
insurance against injury to the body caused by exposure to cell antenna electromagnetic
radiation. What is the reason for this? Why are the insurance dollar amounts so small?
Many carriers have insurance policies that exclude coverage for a "pollutant" and define
"pollutant" to include electromagnetic radiation, electromagnetic radiation, cell antenna and cell
tower radiation, etc. This means that such a policy does not cover injury and damages :from cell
8
antenna radiation. Will the City require an insurance policy that does NOT have such an
exclusion?
11. Fire.
The insurance amounts in the commercial general liability insurance policy are way too small to
cover the possible damage from a fire caused by a cell antenna, $2 million per incident and $4
million aggregate. That could be a few houses. We have seen enormous fires in California in the
last few years. Why aren't the insurance amounts higher?
The staff report also says, "An option is included in Exhibit 4 to add
requirements for insurance and
indemnification for WCFs and SWFs not
subject to a master license agreement."
Where is that? The staff heeds to recommend this to the Council.
12. This is a 3 part question.
12.a. Again on the Front Yard Rule how many City owned street light poles are there in the City
of Carlsbad that are NOT "immediately adjacent to or immediately across the street from the
front yard of a residential dwelling"? Have you looked at them on a map of Carlsbad?
12.b. Based on the assumption of a 2,000' range of a cell antenna would a carrier be able to
provide personal wireless service in the city by locating its cell antennas on some of those street
light poles?
12.c. Based on the assumption of a 500 -1,000' range of a cell antenna would a carrier be able to
provide personal wireless service in the city by locating its cell antennas on some of those street
light poles?
9
City Council Policy No. 64
Update
Corey Funk, Associate Planner
Community Development Department
December 14, 2021
{city of
Carlsbad
TODAY’S PRESENTATION
•Overview and background
•Changes to Federal law
•Proposed amendments to Policy 64
•Public outreach
•Potential modifications to the policy
•Recommendation
ITEM 16: POLICY 64 UPDATE
{ City of
Carlsbad
BACKGROUND
•1996 –Telecommunications Act
•Preempts local governments
•FCC sets RF emissions exposure limits
•Sept. 2018 -FCC issued updated regulations
•Defines small wireless facilities
ITEM 16: POLICY 64 UPDATE
{ City of
Carlsbad
BACKGROUND
Policy 64
•Adopted on Oct. 2, 2001
•Most recently amended Sept. 26, 2017
•Guides placement, construction and
modification of wireless facilities
ITEM 16: POLICY 64 UPDATE
{ City of
Carlsbad
FEDERAL LAW
•Cannot prohibit wireless services
•Cannot discriminate between providers
•May not prevent completion of a network
•Must act on applications in reasonable time
ITEM 16: POLICY 64 UPDATE
{city of
Carlsbad
FEDERAL LAW
•Cannot regulate based on environmental
effects of RF emissions –this applies to:
•Policy 64 requirements
•Review of wireless facilities –cannot deny
permits based on RF emissions
ITEM 16: POLICY 64 UPDATE
{ City of
Carlsbad
FCC FINAL RULES 18-133
(ADOPTED SEPT. 26, 2018)
•New category –small wireless facilities (SWF)
•New, faster shot clocks for SWF permits
•60 days –on existing facilities
•90 days –new facilities
•Restricts ability to prohibit facilities
•Limits pole attachment fees
ITEM 16: POLICY 64 UPDATE
{ City of
Carlsbad
Small Wireless Facilities defined
•Mounted to structures:
•No more than 50 feet tall
•No more than 10% taller than adjacent
structures
•Extends a structure over 50 feet or by more
than 10%
•Antenna no more than 3 cubic feet
•Equipment no more than 28 cubic feet
ITEM 16: POLICY 64 UPDATE
( City of
Carlsbad
CITY DISCRETION
Regulation of aesthetics
•Reasonable (ie. technically feasible)
•Published in advanced (ie. Policy 64)
•Regulations must be similar to other utilities
ITEM 16: POLICY 64 UPDATE
{ City of
Carlsbad
PROPOSED AMENDMENTS
TO POLICY 64
•New category for SWFs
•SWF permit process –administrative permit
•No change for larger facilities (WCFs)
o Standards remain
o Current process working and includes opportunities for public engagement
ITEM 16: POLICY 64 UPDATE
{ City of
Carlsbad
Permit process
Facility type Location Permit Decision maker Appeals
Small
wireless
facility
Public or private
property
Minor conditional
use permit City Planner Planning
Commission
Right of way Right-of-way
permit
Engineering
Manager City Council
PROPOSED AMENDMENTS TO
POLICY 64
•Encourage placement on existing or
replacement infrastructure before new
poles are preferred
•Require concealment of antennas and pole
mounted equipment
ITEM 16: POLICY 64 UPDATE
Design
guidelines
Inside the
ROW
{ City of
Carlsbad
PROPOSED AMENDMENTS TO
POLICY 64
•Accessory equipment
•Limits size of pole mounted equipment to 9
cubic feet in residential areas and 17 cubic feet
in non-residential areas
•Requires undergrounding of remaining
equipment
ITEM 16: POLICY 64 UPDATE
Design
guidelines
Inside the
ROW
{ City of
Carlsbad
PROPOSED AMENDMENTS TO
POLICY 64
•Height
•Max 5 feet above existing support pole
•New poles may exceed city streetlight
standard (24-26 ft.) by 10 percent
ITEM 16: POLICY 64 UPDATE
Design
guidelines
Inside the
ROW
{ City of
Carlsbad
PUBLIC OUTREACH
•Early 2020 -Review of draft by wireless industry:
•AT&T
•Verizon
•Crown Castle
•Sprint
•Comment topics primarily technical and legal
ITEM 16: POLICY 64 UPDATE
{ City of
Carlsbad
PUBLIC OUTREACH
•June 23, 2021 -City Council Workshop on
wireless facilities
•Presentation by Tripp May, III of Telecom Law
Firm
•No public comments received at the meeting
ITEM 16: POLICY 64 UPDATE
{ City of
Carlsbad
PUBLIC OUTREACH
30 day public review of draft with additional outreach:
•3 e-newsletters sent to over 9,600 contacts
•Outreach to local school districts
•News release and project webpage on city website
•5 social media posts with reach of 3,000+
ITEM 16: POLICY 64 UPDATE
City of ,Carlsbad O @earl sbadcagov • Nov 2
The city is updati ng guidelines for placement., construction & aestli etics of
wireless comm infrastructuire to comply w/ c hanges to federal and state
laws related to eel ular technology. Rv p oposed changes and give
fe-edback-11/22. loom.ly/PQDEMok #Carlsba #Getlnvolved
0 0 2 { City of
Carlsbad
PUBLIC OUTREACH –
COMMENTS RECEIVED
•Review period ended November 22, 2021
•93 total comments received –public and industry
•Public -concerns about health effects, locations near
residences, fire risk
•Industry –technical and legal comments
•Responses in staff report, draft and options
•Stakeholder meetings
ITEM 16: POLICY 64 UPDATE
{ City of
Carlsbad
Elk Grove “Front yard rule” (Sec. 23.94.050)
•6.In a residential zoning district, … unless the applicant can
demonstrate … that such siting limitation will materially
inhibit personal wireless service as to a particular small cell
wireless communication facility:
o No small cell wireless communication facility shall be
located immediately adjacent to, nor immediately across
the street from, a front yard of any residential dwelling.
Elk Grove “Front yard rule” (Sec. 23.94.050)
•6.In a residential zoning district, … unless the applicant can
demonstrate … that such siting limitation will materially
inhibit personal wireless service as to a particular small cell
wireless communication facility:
o No small cell wireless communication facility shall be
located immediately adjacent to, nor immediately across
the street from, a front yard of any residential dwelling.
Tamarack Ave. &
Highland Dr.
Tamarack Ave & Highland Dr
0 500
N
A D Focus Areas • Residential Building
a Signal Cabinet • Non-Residential Building
Scale: 1:5,300 • Streetlight D Parcel
77 1
Town
Garden Rd. &
Village
Green Dr.
Town Garden Rd & Village Green Dr ;
o soo 1000 A
D Focus Areas • Residential Building
a Signal Cabinet • Non-Residential Building
----===== Feet Scale: 1:5,300 • Streetlight D Parcel
Document Path: \\shares\GIS A \Re uestsMarch2015\Com con ev\Plannin \RITM0025577 21
El Fuerte St. &
Bolero St.
El Fuerte St & Bolero St
0 500
N
A D Focus Areas • Residential Building
I Signal Cabinet • Non-Residential Building
Scale: 1:5,500 • Streetlight D Parcel
FRONT YARD RULE
Not recommended due to:
•Potential prohibition of service
o Exceptions needed to prevent prohibition
•Better option presented later
o More legally defensible
•May be difficult to implement
ITEM 16: POLICY 64 UPDATE
{ City of
Carlsbad
No.Potential Modification to Policy 64 Requestor Recommendation
1 Collocation:Allow SWF collocations for up to two facilities on one support pole Staff Neutral
No.Potential Modification to Policy 64 Requestor Recommendation
1 Collocation:Allow SWF collocations for up to two facilities on one support pole Staff Neutral
2 Pole type preference:Simplify preference list in C.1.a to the following –existing
vs. new poles with a preference for existing poles
Industry Not recommended
Proposed policy:
1.Existing or replacement streetlight poles
2.Existing or replacement wood utility poles
3.Existing or replacement traffic signal poles
4.New, non-replacement streetlight poles
5.New, non replacement poles (not wood)
Request:
1.Existing or replacement poles
2.New, non-replacement poles
No.Potential Modification to Policy 64 Requestor Recommendation
1 Collocation:Allow SWF collocations for up to two facilities on one support pole Staff Neutral
2 Pole type preference:Simplify preference list in C.1.a to the following –existing
vs. new poles with a preference for existing poles
Industry Not recommended
3 Technical experts:hire outside experts to review application materials, including
RF reports, to verify accuracy and compliance with local and FCC requirements
Public Recommended
No.Potential Modification to Policy 64 Requestor Recommendation
1 Collocation:Allow SWF collocations for up to two facilities on one support pole Staff Neutral
2 Pole type preference:Simplify preference list in C.1.a to the following –existing
vs. new poles with a preference for existing poles
Industry Not recommended
3 Technical experts:hire outside experts to review application materials, including
RF reports, to verify accuracy and compliance with local and FCC requirements
Public Recommended
4 Placement in residential areas:Utilize existing WCF site preference map and
expand to apply to SWFs
Public Neutral
Existing Policy 64
Preferred locations
•ROW adjacent to industrial and
commercial zones
•ROW adjacent to residential
zones
•Includes Arterial, Arterial Connector, Identity,
Employment/Industrial streets
•Excludes local/ neighborhood
streets
PAC!FIC OCEAN
+-<-+ Railroad
-FREEWAY
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J.1R&lUesl:!Mard'l2015\COO!Eoo~C>e'<'d'lannlng\00023705 _ 16\Fol~4ROW!IFO
-: ,1 -·7
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CALAVERA '
I
"'1, 02/08/2D 17
L,
I
I I
Exhibit A
No.Potential Modification to Policy 64 Requestor Recommendation
1 Collocation:Allow SWF collocations for up to two facilities on one support pole Staff Neutral
2 Pole type preference:Simplify preference list in C.1.a to the following –existing
vs. new poles with a preference for existing poles
Industry Not recommended
3 Technical experts:hire outside experts to review application materials, including
RF reports, to verify accuracy and compliance with local and FCC requirements
Public Recommended
4 Placement in residential areas:Apply the location preferences in Section A to
SWFs
Public Neutral
5 Annual Reports:Require carriers submit annual reports on all facilities –which
could show RF emissions are within FCC limits
Public Recommended
No.Potential Modification to Policy 64 Requestor Recommendation
1 Collocation:Allow SWF collocations for up to two facilities on one support pole Staff Neutral
2 Pole type preference:Simplify preference list in C.1.a to the following –existing
vs. new poles with a preference for existing poles
Industry Not recommended
3 Technical experts:hire outside experts to review application materials, including
RF reports, to verify accuracy and compliance with local and FCC requirements
Public Recommended
4 Placement in residential areas:Apply the location preferences in Section A to
SWFs
Public Neutral
5 Annual Reports:Require carriers submit annual reports on all facilities –which
could show RF emissions are within FCC limits
Public Recommended
6 Noticing Requirements:Add noticing requirement as part SWF applications Public Recommended
No.Potential Modification to Policy 64 Requestor Recommendation
1 Collocation:Allow SWF collocations for up to two facilities on one support pole Staff Neutral
2 Pole type preference:Simplify preference list in C.1.a to the following –existing
vs. new poles with a preference for existing poles
Industry Not recommended
3 Technical experts:hire outside experts to review application materials, including
RF reports, to verify accuracy and compliance with local and FCC requirements
Public Recommended
4 Placement in residential areas:Apply the location preferences in Section A to
SWFs
Public Neutral
5 Annual Reports:Require carriers submit annual reports on all facilities –which
could show RF emissions are within FCC limits
Public Recommended
6 Noticing Requirements:Add noticing requirement as part SWF applications Public Recommended
7 Change distance for evaluation of other poles:Applicants must consider more
preferred pole types within 500 feet. Request would reduce this to 200 feet.
Industry Neutral
Option 7
•Proposed policy: Consider
more preferred pole
within 500 feet
•Request: Change to 200
feet
Proposed policy:
1.Existing or replacement streetlight poles
2.Existing or replacement wood utility poles
3.Existing or replacement traffic signal poles
4.New, non-replacement streetlight poles
5.New, non replacement poles (not wood)
No.Potential Modification to Policy 64 Requestor Recommendation
1 Collocation:Allow SWF collocations for up to two facilities on one support pole Staff Neutral
2 Pole type preference:Simplify preference list in C.1.a to the following –existing
vs. new poles with a preference for existing poles
Industry Not recommended
3 Technical experts:hire outside experts to review application materials, including
RF reports, to verify accuracy and compliance with local and FCC requirements
Public Recommended
4 Placement in residential areas:Utilize existing WCF site preference map and
expand to apply to SWFs
Public Neutral
5 Annual Reports:Require carriers submit annual reports on all facilities –which
could show RF emissions are within FCC limits
Public Recommended
6 Noticing Requirements:Add noticing requirement as part SWF applications Public Recommended
7 Change distance for evaluation of other poles:Applicants must consider more
preferred pole types within 500 feet. Request would reduce this to 200 feet.
Industry Neutral
8 Insurance and indemnification:Adopt additional insurance and indemnification
requirements for applicants not subject to a master license agreement
Public Recommended
PROPOSED ACTION
•Adopt a resolution amending City Council
Policy No. 64 as described in the staff report
•Consider adding any of the modification
options as presented
ITEM 16: POLICY 64 UPDATE
{ City of
Carlsbad
Conclusion
Staff is available for questions
{city of
Carlsbad
Extra slides
ITEM 10: SHORTENED TITLE HERE
SWF
example
{ City of
Carlsbad
SWF example
SWF example
Residential Setback
Ta 1m.a1ra1ck Ave & Hig1hland Dr
50'' Buffer
50' Blllffer IRieside1miall Buildina
1111 Non-lR1esidentiall Builct[ng 11 I Panoolll
N
'i . o!!!l!l!I: ---50!!11:,o:::::::. ==1=-@o JI\ Feet
Residential Setback
Ta1m:a1rack Ave & H11g1hland Dr
1,00•· Buffer
100' Buffer IRies.iae1rniial Building
• Non-Resiae111tiall Buila-ng 11 I Parcelll
N
A 1 1]. ----!!!!!!!C:===~Feet.
Residential Setback -..
N Town Garden Rd & Village Green Dr
501 Buffer A 0 ■
50' Buffer !Residential Building -Non-lR1esideritialll Building 11 I If
Residential Setback
Town Garden IRd & Village Gree:n Dr
1,00' Buffe:r
N
A 0 1000 ----====:::,Feet 500
100' Buffer IR!esident~all Building -Non-lResidentialll Building II I Parcell
.. ..
Residential Setback
IEI f '1uerte St & !Bolero St
so·· Buffer
50' Buffer IRJesidenUall Building
-Non-l~esidentiall Building D Parcell
N
A 0 moo ----=====i F:eet
Residential Setback
El Fuerte St & Bolero St
100' Buffe:r
100' Buffer Residemiall Building
-Non-R,eside111 iall Buila·ng 11 I Parcell
N
A [I 101][1 ----====::,f;eet