Date: July 7, 2020
From: Glen Ellyn-VHP — https://ourtownourchoice.org/glenellyn
To: Village of Glen Ellyn Trustee Board President Diane McGinley firstname.lastname@example.org
cc: Village Manager Mark Franz email@example.com
Assistant Village Manager Bill Holmer, firstname.lastname@example.org
Villlage Attorney Greg Mathews email@example.com
Attorney Adam Simon firstname.lastname@example.org
Trustee Kelli Christiansen VGETrusteeChistiansen@gmail.com
Trustee Bill Enright email@example.com
Trustee Gary Fasules firstname.lastname@example.org
Trustee Craig Pryde email@example.com
Trustee Mark Senak firstname.lastname@example.org
Trustee Steve Thompson email@example.com
Village Clerk John Chereskin firstname.lastname@example.org
Building and Zoning Official Steve Witt email@example.com
Subject: Our Town, Our Choice & Other Important Matters
Dear President McGinley et al.,
[Village Clerk Chereskin, will you please add this email to the Village of Glen Ellyn (VGE) Public record, attached to VGE Wireless Ordinance that was voted through on Apr 27, 2020, during the national emergency of Covid-19 lockdown? Thank you for doing so.]
Glen Ellyn-VHP is writing to clarify to the Village of Glen Ellyn (VGE) elected officials and City staff that many of the residents of Glen Ellyn consider the unnecessary taking of our safety, privacy and property values for the further enrichment of private wireless companies to be both wrong and inconsistent with the legislative intent of the Federal 1996 Telecommunications Act (1996-TCA), as we have previously testified and established with substantial written evidence entered in the VGE public record.
Please note that in that substantial written evidence — and in this email/letter — members of Glen Ellyn-VHP have expressed no matters of mere concern but solely matters of substance, fact and law. Please do not mischaracterize our communications as “concerns” in any responses VGE may offer to this email/letter.
Foundation: The regulation of the operations of Wireless Telecommunications Facilities of any size and any “G” was never preempted from local zoning authority by the 1996 Telecommunications Act (1996-TCA)
The facts of the matter are laid out in a simple textual comparison of the penultimate version of the 1996-TCA (HR.1555 from Fall 1995, which did not pass) and the ultimate version of 1996-TCA (S.652, which passed in Feb 1996 and was signed into law by President Clinton), — see https://scientists4wiredtech.com/compare/.
It is exceedingly improbable that the US Congress, in passing the 1996-TCA, intended for the population to sicken and die in order to maximize the profits of private Wireless companies., especially considering that the goals of the 1996-TCA have been largely achieved. Please consider the following evidence that supports our statement:
A. From this page, the evidence shows the three legs of the stool that establishes local control over the operations of Wireless Telecommunications Facilities (WTFs); the other two are the US House/Senate Conference Report for the 1996-TCA and the stated purpose of the 1996-TCA: to promote the safety of life and property.
“The conferees also intend that the phrase ‘‘unreasonably discriminate among providers of functionally equivalent services’’ will provide localities with the flexibility to treat facilities that create different visual, aesthetic, or safety concerns differently to the extent permitted under generally applicable zoning requirements even if those facilities provide functionally equivalent services. For example, the conferees do not intend that if a State or local government grants a permit in a commercial district, it must also grant a permit for a competitor’s 50-foot tower in a residential district . . .
If a request for placement of a personal wireless service facility involves a zoning variance or a public hearing or comment process, the time period for rendering a decision will be the usual period under such circumstances. It is not the intent of this provision to give preferential treatment to the personal wireless service industry in the processing of requests, or to subject their requests to any but the generally applicable time frames for zoning decision.
C. From this link to the Mar 2, 2017 Committee on Commerce, Science, and Transportation Hearing, Roger Entner, Founder, Recon Analytics
“97.9 percent of Americans can choose from three [wireless] network base operators and 93.4 percent can choose from four [wireless] operators plus more than a dozen virtual operators — the mobile industry’s equivalent of over the top competitors”
July 7, 2020 Video-Conference Meeting Agenda
In the late afternoon of July 6, 2020, we received from VGE President McGinley the following four agenda items for our video conference meeting scheduled for July 7, 2020 from 2:00 pm to 2:45 pm, CT:
- A. Opening Remarks of President McGinley
- B. FAQ’s Discussion
- C. Discussion of Legal Requirements
- D. Request for Proposed Ordinance Changes/Additions
To support Agenda items B and C, Glen Ellyn VHP is offering its analysis and input in this email/letter, including three detailed appendices.
- Appendix A: Oral Arguments: Portland et al. v FCC (Feb 10, 2020) re: FCC Orders 18-111 and 18-133
- Appendix B: Annotations to Draft FAQ provided by the Village of Glen Ellyn (VGE) on Jul 6, 2020
- Appendix C: Ciesla Law Analysis of 7/2/2020 Clay County, IL Order
To support Agenda item D, Glen Ellyn VHP wrote the web page called “Improved Glen Ellyn Wireless Ordinance” for our last meeting from several weeks ago. The page has been available for review by VGE staff and outside counsel for several weeks at these two links:
Please note that since our July 7, 2020 meeting will last only 45 minutes, it is unlikely that we will be able complete our discussion of Agenda items B, C and D above and we will not have sufficient time to resolve the following additional items that Glen Ellyn-VHP needs to address with VGE staff and Trustees, as soon as possible. On what date/time can we schedule our next meeting and will there be sufficient time allotted to discuss all of the open matters?
Additional Open Matters To Be Discussed in Future Meetings
1. VGE’s insufficient response to several Americans with Disabilities requests for reasonable accommodations
. . . regarding the placement, construction and operations of so-called “small” Wireless Telecommunications Facilities (sWTFs) proposed to be constructed too low to the ground (insufficient Vertical), too close to homes (insufficient Horizontal) and at too high a level of Effective Radiated Power (insufficiently-regulated Power). Learn more about this here → https://scientists4wiredtech.com/vhp
- One Glen Ellyn resident is being forced to sleep in her basement to avoid the excessive Effective Radiated Power (ERP) that the antennas of Brookdale cell towers, “smart “electric, “smart” gas, and “smart” water meters — all deploy.
- It was never the intent of the 1996-TCA that people like her would have to face early-dementia, illness, injury or death so that private Wireless companies could maximize their profits and transfer their liability to VGE and its taxpayers
- Excessive ERP in VGE is limiting one or more of this VGE resident’s major life activities. She has ADA rights and is seeking a reasonable accommodation;
- VGE must enter into a substantive conversation with her about such a reasonable accommodation. Failure to do so violates the Americans with Disabilities Act.
- Who is the VGE ADA coordinator, what ADA training has that person received and when will the conversation commence — a conversation that must follow the revised rules published by the ADA in 2016?
2. Wireless Need Test (WNT) to be added to VGE Wireless Ordinance
A common sense local solution could be a semi-annual, industry-standard Drive Test that establishes signal strength data readings for every carrier-specific frequency being transmitted onto the streets of VGE. VGE could pass a local law called the Comprehensive Radiofrequency And Microwave-Signal Strength (CRAM-SS) Test Ordinance that would require a comprehensive Wireless Need Test to be conducted every six months by an independent RF Engineer, who will log, second-by-second, the Wireless signal-strength readings in dBm (decibel-milliWatts) of every carrier-specific licensed and unlicensed wireless frequency that is being transmitted onto the streets of VGE.
The full data file for each CRAM-SS Test will be placed in the public record for anyone to view, analyze and verify. Such data would serve as the basis for objective local decisions, regarding:
- the need for any additional Wireless infrastructure of Any G; and
- the placement, construction, modification and operations of WTFs of Any G within the VGE’s borders.
The Cost for the CRAM-SS Tests would be paid by current antenna operators on a pro rata basis: the share of each Wireless Company’s antenna capabilities, meaning the percentage of the sum of the maximum Effective Radiated Power that could be transmitted by each antenna operating within VGE.
Such a WNT requirement could added to the objective standards for so-called “small” Wireless Telecommunications Facilities (sWTFs) and for the placement, construction and modification of any other WTFs within VGE borders.
3. Purpose of and need for six current fiber optics installations in VGE must be made explicit to VGE residents
- After inspecting VGE public records, we noted that “small cells” was checked on the paper work for these fiber optic installations
- What firm is performing the work?
- What sharing requirements will VGE require for the fiber optic cables being installed in the public rights-of-way?
- When will the purpose of the fiber optic installations be shared with the public?
4. Spring & Roslyn sWTF application remains incomplete due to missing information on plans.
- After inspecting VGE public records, we could only locate antenna specifications for two of the eight antennas planned for this sWTF
- Two (2) Amphenol HTXCWW-63111414F0 antennas — we found specs for this one, only (specs were not in the file)
- Two (2) Ericcson KRE_101_2251 antennas — missing all specs in the file
- Two (2) Ericcson KRE_105_259 antennas — missing all specs in the file
- Two (2) VZ-AIR6701_TB antennas — Four(4) 5G High-Band Antennas: 28,000 MHz & 39,000 MHz (no Antenna Gain specs in the file)
- Two (2) Ericcson 5G 2205/2: 208 UnitsFour(4) 5G Mid-Band Radios/Antennas: 3,550-3700 MHz & 5,000x MHz (no Antenna Gain specs in the file)
- Ericcson Unit 4409 — missing all specs in the file
7.Ericcson Unit 8843 — missing all specs in the file
- It is impossible to verify the sum of the maximum Effective Radiated Power (ERP) output of all of the antennas for this sWTF from the data in the file at VGE.
- Therefore this sWTF application (and any similar applications) must be deemed incomplete via letter from VGE to applicant, until the applicant provides such verifiable data.
Note: Link to Amphenol HTXCWW63111414Fxy0 Antenna Specs
Maximum Effective Radiated Power (ERP) Output
|Frequencies||Max. Power × Gain||ERP||x 2|
|696-806||500 W × 10.5 =||5,250 Watts||10,500 Watts|
|806-960||500 W × 11.0 =||5,500 Watts||11,000 Watts|
|1710-1880||300 W × 13.5 =||4,050 Watts||8,100 Watts|
|1850-1990||300 W × 14.0 =||4,200 Watts||8,400 Watts|
|1850-1990||300 W × 14.0 =||4,200 Watts||8,400 Watts|
|1900-2170||300 W × 14.0 =||4,200 Watts||8,400 Watts|
|Total ERP||N/A||27,400 Watts||54,800 Watts|
5. Glen Ellyn-VHP needs clarification of the address of the most recently denied sWTF application
- This is not clear from recent emails from Steve Witte
- Glen Ellyn-VHP needs to know if denial is permanent, or could it be revived by applicant
6: Environmental Commission,
7. VGE Police Powers to Preserve Quiet Enjoyment of Our Streets,
8. Sufficient General Liability Insurance to Cover VGE Against Claims of Injury, Illness or Death from pulsed, data-modulated, Radio-frequency Electromagnetic Microwave Radiation (RF-EMR) Exposures
- View the video and details at https://scientists4wiredtech.com/thisworks
- View the slides at https://mystreetmychoice.com/thisworks
- View proposed VGE Ordinance additions at https://ourtownourchoice.org/glenellyn/improved-ordinance/
9. IL SB.1451: Moratorium (14), Public Safety (6G) , Insurance (Sec 35)
- Full text (nicely formatted, with link to original pdf) at https://ourtownourchoice.org/il-state-bill-1451/
Section 15. Regulation of small wireless facilities.
(6) An authority may require that: . . .
- (G) the wireless provider comply with the applicable codes and local code provisions or regulations that concern public safety;. . .
“(9) An authority shall approve an application unless the application does not meet the requirements of this Act. If an authority determines that applicable codes, local code provisions or regulations that concern public safety, or the requirements of paragraph (6) require that the utility pole or wireless support structure be replaced before the requested collocation, approval may be conditioned on the replacement of the utility pole or wireless support structure at the cost of the provider.
The authority must document the basis for a denial, including the specific code provisions or application conditions on which the denial was based, and send the documentation to the applicant on or before the day the authority denies an application. The applicant may cure the deficiencies identified by the authority and resubmit the revised application once within 30 days after notice of denial is sent to the applicant without paying an additional application fee. The authority shall approve or deny the revised application within 30 days after the applicant resubmits the application or it is deemed approved; however, the applicant must notify the authority in writing of its intention to proceed with the permitted activity on a deemed approved basis, which may be submitted with the resubmitted application.
Any subsequent review shall be limited to the deficiencies cited in the denial. However, this revised application cure does not apply if the cure requires the review of a new location, new or different structure to be collocated upon, new antennas, or other wireless equipment associated with the small wireless facility.
(10) The time period for applications may be further tolled by:
- (A) the express agreement in writing by both the applicant and the authority; or
- (B) a local, State, or federal disaster declaration or similar emergency that causes the delay.
. . .
(14) An authority may not prohibit, either expressly or de facto, the (i) filing, receiving, or processing applications, or (ii) issuing of permits or other approvals, if any, for the collocation of small wireless facilities unless there has been a local, State, or federal disaster declaration or similar emergency that causes the delay.
Section 15. Section 35. Insurance.
(a) Except for a wireless provider with an existing franchise to occupy and operate in the rights-of-way, during the period in which the wireless provider’s facilities are located on the authority improvements or rights-of-way, the authority may require the wireless provider to carry, at the wireless provider’s own cost and expense, the following insurance:
- (i) property insurance for its property’s replacement cost against all risks;
- (ii) workers’ compensation insurance, as required by law; or
- (iii) commercial general liability insurance with respect to its activities on the authority improvements or rights-of-way
. . . to afford minimum protection limits consistent with its requirements of other users of authority improvements or rights-of-way, including coverage for bodily injury and property damage. An authority may require a wireless provider to include the authority as an additional insured on the commercial general liability policy and provide certification and documentation of inclusion of the authority in a commercial general liability policy as reasonably required by the authority.
(b) A wireless provider may self-insure all or a portion of the insurance coverage and limit requirements required by an authority. A wireless provider that self-insures is not required, to the extent of the self-insurance, to comply with the requirement for the naming of additional insureds under this Section.
A wireless provider that elects to self-insure shall provide to the authority evidence sufficient to demonstrate its financial ability to self-insure the insurance coverage and limits required by the authority.
Section 40. Home rule.
A home rule unit may not regulate small wireless facilities in a manner inconsistent with this Act.
This Section is a limitation under subsection (i) of Section 6 of Article VII of the Illinois Constitution on the concurrent exercise by home rule units of powers and functions exercised by the State.
Section 90. Repeal.
This Act is repealed on June 1, 2021.
No Significant Gaps in VGE
The residents of VGE have sufficient telecommunications service in VGE. We have had such sufficient telecom service before VGE received any applications for so-called “small” Wireless Telecommunications Facilities (sWTFs). We have proven this by documenting our ability to successfully make calls at various locations around VGE. See the evidence (Youtube video and PowerPoint file) at https://ourtownourchoice.org/glenellyn/nogap. We are entering this substantial written evidence into the VGE public record today.
In many Federal Circuits, including the Ninth Circuit (see Metro-PCS vs. San Francisco) the analysis of need for additional Wireless Infrastructure of Any G rests on the concepts of “significant gap in coverage” and “least intrusive means” to close any proven gap in telecommunications service. What are the equivalent definitions in the 7th Circuit? (https://mystreetmychoice.com/press.html#courts)
The FCC sWTFs Agenda is Crumblling
The FCC’s Sept 2018 Order, FCC 18-133, The Streamline Small Cell Deployment Order is a presumptive order, which means that FCC 18-133 is merely a statement of FCC preferences and is not self-enforcing, according to FCC attorney Scott Noveck in his Feb 10, 2020 Oral argument defending Order 18-133 in the US Courts of Appeal, Ninth Circuit (See Appendix A, below). We are expecting a Ruling in the case in July/Aug 2020; the case was argued on Feb 10, 2020 . . . and in the words of attorney Jonathon Kramer:
“As someone who was in the room watching the body language that didn’t make the video feed, I can tell you that I absolutely agree . . . I think more significant portions of the Order are doomed and maybe just all of it.”
This expected, impending FCC defeat adds to the other defeats the FCC already endured in 2019:
1. Aug 9, 2019: DC Circuit Case No. 18-1129: Keetowah et al. v FCC
“We rule that the Order’s deregulation of small cells is arbitrary and capricious because its public-interest analysis did not meet the standard of reasoned decision-making.”
2. Oct 1, 2019: DC Circuit Case No. 18-1051: Mozilla et al. v FCC
“Congress does not generally hide elephants in mouseholes, and we think it utterly improbable that [Congress intended to authorize the EPA’s interpretation] by creating a list of several hundred toxic chemicals.”) (internal citation omitted). The mousehole, in short, cannot be the wellspring of preemption authority that the Commission needs. Doubly so here, where the Supreme Court has specifically held that the Commission’s desire to “best effectuate a federal policy” must take a back seat to Section 152(b)’s assignment of regulatory authority to the States. Louisiana PSC, 476 U.S. at 374.”
In addition to the FCC being a serial loser in the courts in 2019-2020, we also recognize that Congress clearly explained the Congressional intent of the preemption law portion of the 1996-TCA in Title 47 U.S.C. § 332(c)(7) in H. R. Rep. No. 104-204, the same conference report that US Supreme Court Justices Justices Breyer, O’Connor, Souter and Ginsburg join, recgonized in their 2005 Ruling in Case No. 03-1601, CITY OF RANCHO PALOS VERDES et al. v. ABRAMS (2005):
3. Link to CITY OF RANCHO PALOS VERDES et al. v. ABRAMS (2005)
Congress initially considered a single national solution, namely a Federal Communications Commission wireless tower siting policy that would preempt state and local authority. Ibid.; see also H. R. Conf. Rep. No. 104-458, p. 207 (1996). But Congress ultimately rejected the national approach and substituted a system based on cooperative federalism. Id., at 207-208.
State and local authorities would remain free to make siting decisions They would do so, however, subject to minimum federal standards [just the “placement, construction and modification of personal wireless facilities”] — both substantive and procedural — as well as federal judicial review.
Need for Substantiation
In our July 7, 2020 meeting by Zoom, we are not interested in any unsubstantiated statements. We are interested in the legal citations that VGE might reference as their authority to act not in accordance with Federal Laws: the 1996-TCA, the ADA and the FHA. In short, we are interested in Quo warranto. What evidence, fact and law will VGE cite to substantiate its statements?
We are also interested in digging into the language of the 1996 Telecommunications Act, the 1996-TCA conference report, and IL SB.1451 to encourage all to achieve an understanding from an informed reading of the plain language of the law. An accurate plain language reading of these laws is critically important in matters of preemption.
Considering that the current VGE Wireless Muni Code with respect to the placement, construction, modification and operation of WTFs is not consistent with many Federal Acts (1996-TCA, the National Environmental Policy Act, Americans with Disabilities Act and the Fair Housing act), then it is imperative that the City complete a rewrite of its Wireless code on an Urgency Ordinance basis to reflect the most up-to-date Rulings in the Federal Courts of Appeals.
It also is necessary to act on an emergency basis in order “to promote the safety of life and property”, which is a chief purpose of both the 1934 Federal Communications Act and the 1996-TCA. At this time, VGE residents’ safety of life and property are under direct attack by the current VGE Wireless code.
Note: All Youtube video links were live on July 6, 2020, but not not July 7, 2020. Hmmm . . .
Oral Arguments: Portland et al. v FCC (Feb 10, 2020) re: FCC Orders 18-111 and 18-133
Note: this Ninth Circuit Ruling is expected in mid-July, 2020
Case No. 19-70144 Re: Repeal of of the Aug, 2018 and Sept 2018 FCC Orders:
- FCC 18-111: (Aug 2018) Speeding Access to Poles and FCC Presumptive Order on State Moratoria
- FCC-18-133: (Sept 2018) Streamline Small Cell Deployment Order
The full video of the oral argument is featured at the top of https://scientists4wiredtech.com/ninth-circuit-case-repeal-of-fcc-18-133/.
Scott Noveck, FCC Attorney on Feb 10, 2020 → https://youtu.be/t_IMrAqwpNk?t=36m47s
“The Moratoria Order doesn’t purport to prevent localities from addressing reasonable aesthetic requirements. In fact we say in the small cell order that aesthetic requirements are permitted . . . a locality could say if a 50-foot pole would be out of character with the surrounding neighborhood, you can’t put up a 50 foot pole.”
FCC 18-133 Footnote 246 → “Our decision to adopt this objective requirement is supported by the fact that many states have recently adopted limits on their localities’ aesthetic requirements that employ the term “objective.” [objective meaning easily ascertainable, per Scott Noveck, FCC Attorney on Feb 10, 2020]
Scott Noveck, FCC Attorney on Feb 10, 2020 → https://youtu.be/t_IMrAqwpNk?t=53m15s
“These small cells, though they have much less range than macro towers, they have a fair range.”
Note: Noveck’s truthful statement in front of a Panel of Federal judges from the Ninth Circuit agrees with the comments of Lee Afflerbach, RF Engineer for CTC Technology that were entered into the City of Sonoma Public record on Sept 12, 2019:
Lee Afflerbach at 3:10:24 in the video → https://youtu.be/HRYFXx7oNN4?t=3h10m24s
“many people are [wirelessly] streaming video and other services like that . . . each [small] cell is capable of almost putting out the same energy as one macro cell.”
* Lee Afflerbach at 3:13:22 in the video → https://youtu.be/HRYFXx7oNN4?t=3h13m22s*
“. . . my staff has probably reviewed several hundred of these small cells in the last year . . . and they are all 4G . . . The radios that they are using are the exact same radios that are up on the macro towers. It’s not a different technology . . . the same boxes as on macro towers. I see them all the time.”
Joseph Van Eaton, BBK Attorney for City of Portland et al. on Feb 10, 2020 → https://youtu.be/t_IMrAqwpNk?t=1h10m52s
“What the FCC sees as a generous order, when you look at what the findings of law are, it is actually pretty harsh and the same thing is true with the reasonable aesthetics requirements . . . reasonable is defined as technically feasible . . . and we know from the intevenor’s brief that the intervnor’s view that as they get to install what the want and basically where they want subject to only such minor adjustments as they can make without preventing them from doing that which they want to do, so it doesn’t protect the city . . . ; the Wireless carriers always have the out of technical feasibility.”
US Code Title 47 § 253
(a) In general — No State or local statute or 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.
(b) State regulatory authority — Nothing in this section shall affect the ability of a State to impose, on a competitively neutral basis and consistent with section 254 of this title, requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers.
(c) State and local government authority — Nothing in this section affects the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the compensation required is publicly disclosed by such government.
(d) Preemption— If, after notice and an opportunity for public comment, the Commission determines that a State or local government has permitted or imposed any statute, regulation, or legal requirement that violates subsection (a) or (b), the Commission shall preempt the enforcement of such statute, regulation, or legal requirement to the extent necessary to correct such violation or inconsistency.
Analysis incomplete, as of 7/7/2020 at 1:40 pm; will be updated at https://ourtownourchoice.org/glenellyn/letters/July-7-2020
Annotations to Draft FAQ provided by the Village of Glen Ellyn (VGE) on Jul 6, 2020
subtractions and [additions], below, as well as Glen Ellyn-VHP Comments
Frequently Asked Questions about Municipal Regulation of Telecommunications Antennas
FAQ [questions and answers] are intended to clarify the scope of the Village’s power to regulate the operation of wireless telecommunications equipment used for cellular communications [wireless telecommunications service]. The Village of Glen Ellyn declares its intent to review applications for wireless telecommunications equipment in
- a non-discriminatory manner, and
- and without malice
. . . towards cellular carriers [, VGE residents and all other stakeholders affected by the regulation, or lack of sufficient regulation, of the operation of wireless telecommunications equipment used for wireless telecommunications service.]
Glen Ellyn-VHP Comment:
Key Federal, State and Local legal definitions are very relevant to clarify VGE’s duties and obligations to sufficiently regulate the operation of wireless telecommunications equipment used for wireless telecommunications service.
A. Federal: U.S. Code Title 47 § 151 Purposes of Federal Communications Commission (1934).
For the purpose of regulating
- interstate commerce and
- foreign commerce
. . . in communication by wire and radio
. . . so as to make available, so far as possible, to all the people of the United States without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges,
- for the purpose of the national defense,
- for the purpose of promoting safety of life and property
. . . through the use of wire and radio communications.
B. Federal: U.S. Code Title 47 § 332 Mobile services (1996).
LII –> U.S. Code –> Title 47. TELECOMMUNICATIONS –> Chapter 5. WIRE OR RADIO COMMUNICATION –> Subchapter III. SPECIAL PROVISIONS RELATING TO RADIO –> Part I. General Provisions –> Section 332. Mobile services
(a) Factors which Commission must consider
(1) promote the safety of life and property;
(2) improve the efficiency of spectrum use and reduce the regulatory burden upon spectrum users, based upon sound engineering principles, user operational requirements, and marketplace demands;
(3) encourage competition and provide services to the largest feasible number of users; or
(4) increase interservice sharing opportunities between private mobile services and other services.
C. Federal: Title 47 U.S. Code § 153 Definitions.
(50) Telecommunications — The term “telecommunications” means the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.
(53) Telecommunications service — The term “telecommunications service” means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.
(24) Information service — The term “information service” means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.
The Village’s regulations are established under the philosophy of “trust, but verify,” since this represents a rational allocation of the Village’s scarce resources. Nothing in this FAQ should be interpreted as a decision by the Village to waive any of the authority granted by State law and not limited by Federal law.
Q: Does Federal law regulate the power of telecommunications equipment?
A: Yes. Federal safety regulations enforced by the Federal Communications Commission govern both radiation frequency exposure limits (47 CFR §1.1310) and effective radiated power limits (47 CFR §22.913).
Title 47 CFR § 22.913 – Effective radiated power limits.
Licensees in the Cellular Radiotelephone Service are subject to the effective radiated power (ERP) limits and other requirements in this Section. See also § 22.169.
(a) Maximum ERP. The ERP of transmitters in the Cellular Radiotelephone Service must not exceed the limits in this section.
- (1) Except as described in paragraphs (a)(2), (3), and (4) of this section, the ERP of base stations and repeaters must not exceed –
- (i) 500 watts per emission; or
- (ii) 400 watts/MHz (PSD) per sector.
- (2) Except as described in paragraphs (a)(3) and (4) of this section, for systems operating in areas more than 72 kilometers (45 miles) from international borders that:
- (i) Are located in counties with population densities of 100 persons or fewer per square mile, based upon the most recently available population statistics from the Bureau of the Census; or
- (ii) Extend coverage into Unserved Area on a secondary basis (see § 22.949), the ERP of base transmitters and repeaters must not exceed –
- (A) 1000 watts per emission; or
- (B) 800 watts/MHz (PSD) per sector.
- (3) Provided that they also comply with paragraphs (b) and (c) of this section, licensees are permitted to operate their base transmitters and repeaters with an ERP greater than 400 watts/MHz (PSD) per sector, up to a maximum ERP of 1000 watts/MHz (PSD) per sector unless they meet the conditions in paragraph (a)(4) of this section.
- (4) Provided that they also comply with paragraphs (b) and (c) of this section, licensees of systems operating in areas more than 72 kilometers (45 miles) from international borders that:
- (i) Are located in counties with population densities of 100 persons or fewer per square mile, based upon the most recently available population statistics from the Bureau of the Census; or
(ii) Extend coverage into Unserved Area on a secondary basis (see § 22.949), are permitted to operate base transmitters and repeaters with an ERP greater than 800 watts/MHz (PSD) per sector, up to a maximum of 2000 watts/MHz (PSD) per sector.
(5) The ERP of mobile transmitters and auxiliary test transmitters must not exceed 7 watts.
(b) Power flux density (PFD). Until May 12, 2024, each Cellular base station that operates at the higher ERP limits permitted under paragraphs (a)(3) and (4) of this section must be designed and deployed so as not to exceed a modeled PFD of 3000 microwatts/m 2/MHz over at least 98% of the area within 1 km of the base station antenna, at 1.6 meters above ground level. To ensure its compliance with this requirement, the licensee must perform predictive modeling of the PFD values within at least 1 km of each base station antenna prior to commencing such operations and, thereafter, prior to making any site modifications that may increase the PFD levels around the base station. The modeling tools must take into consideration terrain and other local conditions and must use good engineering practices for the 800 MHz band.
(c) Advance notification requirement. At least 30 days but not more than 90 days prior to activating a base station at the higher ERP limits permitted under paragraphs (a)(3) and (4) of this section, the Cellular licensee must provide written advance notice to any public safety licensee authorized in the frequency range 806-816 MHz/851-861 MHz with a base station located within a radius of 113 km of the Cellular base station to be deployed. The written notice shall be required only one time for each such cell site and is for informational purposes only; the public safety licensees are not afforded the right to accept or reject the activation or to unilaterally require changes in the operating parameters. The written notification must include the base station’s location, ERP level, height of the transmitting antenna’s center of radiation above ground level, and the timeframe for activation, as well as the Cellular licensee’s contact information. Additional information shall be provided by the Cellular licensee upon request of a public safety licensee required to be notified under this paragraph (c). See also §§ 22.970 through 22.973.
(d) Power measurement. Measurement of the ERP of Cellular base transmitters and repeaters must be made using an average power measurement technique. The peak-to-average ratio (PAR) of the transmission must not exceed 13 dB. Power measurements for base transmitters and repeaters must be made in accordance with either of the following:
(1) A Commission-approved average power technique (see FCC Laboratory’s Knowledge Database); or
(2) For purposes of this section, peak transmit power must be measured over an interval of continuous transmission using instrumentation calibrated in terms of an rms-equivalent voltage. The measurement results shall be properly adjusted for any instrument limitations, such as detector response times, limited resolution bandwidth capability when compared to the emission bandwidth, sensitivity, etc., so as to obtain a true peak measurement for the emission in question over the full bandwidth of the channel.
(e) Height-power limit. The ERP of base transmitters must not exceed the amount that would result in an average distance to the service area boundary of 79.1 kilometers (49 miles) for Cellular systems authorized to serve the Gulf of Mexico MSA and 40.2 kilometers (25 miles) for all other Cellular systems. The average distance to the service area boundary is calculated by taking the arithmetic mean of the distances determined using the procedures specified in § 22.911 for the eight cardinal radial directions.
(f) Exemptions from height-power limit. Licensees need not comply with the height-power limit in paragraph (e) of this section if either of the following conditions is met:
(1) The proposed operation is coordinated with the licensees of all affected Cellular systems on the same channel block within 121 kilometers (75 miles) and concurrence is obtained; or
(2) The licensee’s base transmitter or repeater is operated at the ERP limits (W/MHz) specified above in paragraph (a)(1)(ii), (a)(2)(ii), (a)(3), or (a)(4) of this section.
[82 FR 17582, Apr. 12, 2017]
Radiation frequency exposure limits measure the specific absorption rate (SAR) in human tissue resulting from the operation of a radio signal at a given frequency for a particular duration. These rules also define how to measure the SAR for a particular antenna.
Effective radiated power (ERP) limits directly limit the power emitted from radio antennas operated for cellular services. It is important to note that these regulations describe both a base ERP limit and an elevated ERP limit for which an operator can qualify depending on the environment where the antenna is located. These rules also define how to measure the ERP for a particular antenna.
Under Federal law, routine environmental evaluation for RF exposure is required for transmitters, facilities or operations that are included in certain categories of facilities. These categories include equipment used for cellular communication when the facility is installed below 10 meters above ground level to the lowest point of antenna and the total power of all channels is greater than 1000 W ERP.
Q: Does Federal law limit the authority for municipalities to regulate the operating power of telecommunications antennas?
** A: ** Yes. Under Federal law, there is an express preemption provision in 47 U.S.C. §§ 253(a), (d), authorizing the FCC to pre-empt “any [local] statute, regulation, or legal requirement” that “may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” Likewise, as described in 47 U.S.C. § 332 (c) (7), Congress intended that the FCC have exclusive jurisdiction over disputes regarding RF emissions.
See N.Y. SMSA Ltd. P’ship v. Town of Clarkstown, 603 F. Supp. 2d 715 (S.D. NY 2009). In the Clarkstown case, the Court found,
“a town plainly may not impose separate, stricter certification requirements for wireless technology than those set forth by the FCC. Federal law has preempted the field of technology authorization and station licensing, and there is no room for state and local authorities to regulate in these areas.”
Q. Can the Village pass a moratorium on all 5G applications?
A. No. Even under the most restrictive form of the Governor’s Executive Order, “essential infrastructure” was exempt from the Stay at Home requirements. Essential Infrastructure was defined to include, “internet, video, and telecommunications systems (including the provision of essential global, national, and local infrastructure for computing services, business infrastructure, communications, and web-based services).” Based on this language, the on-going deployment of small cell antennas by telecommunications carriers did not violate the former Executive Orders and is permitted to continue.
Next, we can look at State and Federal telecommunications law. The FCC has interpreted Federal law to hold the deadline for final action on permit applications may expire notwithstanding a putative moratorium. In other words, if the Village fails to take final action before the “shot clock” expires, it is subject to legal challenge and the corresponding expenses.
For the State, we look at the Illinois Small Wireless Facilities Deployment Act, 50 ILCS 840/1, et seq. The Act is the State law which governs how local governments license or permit the erection of small wireless facilities within their jurisdiction.
The Act does not permit a local government to adopt a moratorium, which is a temporary or permanent refusal to accept applications for permits. The Act provides for a strict timeline by which a local government must normally review and respond to a permit application. For example, within 30 days after receiving an application, the Village must determine whether the application is complete. Additionally, an application to collocate a small wireless facility must be processed within 90 or 120 days, depending on whether a new utility pole will be erected.
The Act does permit the Village to delay action on permit applications in limited circumstances, including a local, State, or federal disaster declaration or similar emergency that causes the delay. 50 ILCS 840/15(d)(10)(B).
Based on the information provided above, here is a summary of how small wireless device construction can continue during the pandemic:
A) Carriers who already have permits may perform construction to exercise the rights granted by those permits;
B) Carriers may continue to submit applications for new small wireless facility installations;
C) The Village will exercise its authority to review the applications under its locally adopted regulations which are not inconsistent with the Act; and
D) The Village will process permit applications as it normally does. A permit official may delay final action on a permit application if the delay is caused by a local, State or federal disaster declaration or similar emergency. The delay described above should not be an indefinite delay, but only what is necessary to permit staff to review the application in light of the restrictions in place on the Village’s employees during the current emergency
Q: Is NEPA review required prior to every installation of telecommunications equipment?
** A:** No. In October 2014 the FCC issued a Report and Order which modified its rules in a manner designed to accelerate broadband deployment by changing wireless facilities siting policies. In the Report and Order, the Commission expressed:
We adopt measures to refine our environmental and historic preservation review processes under NEPA and NHPA to account for new wireless technologies, including physically small facilities like those used in DAS networks and small cell systems that are a fraction of the size of macro-cell installations. In contrast to the large-scale antennas and structures that our review processes were designed to address, these smaller antennas (and their associated compact radio equipment) can operate on existing short structures such as utility poles as well as on rooftops or inside buildings. As described in detail in the Executive Summary and in Section III, we expand an existing categorical exclusion from NEPA review so that it applies not only to collocations on buildings and towers, but also to collocations on other structures like utility poles. We also adopt a new categorical exclusion from NEPA review for some kinds of deployments in utilities or communications rights-of-way. With respect to NHPA, we create new exclusions to address certain collocations on utility poles and other non-tower structures. We take these steps to assure that, as we continue to meet our responsibilities under NEPA and NHPA, we also fulfill our obligation under the Communications Act to ensure that rapid, efficient, and affordable radio communications services are available to all Americans. In its implementation of the Report and Order in 2016 the FCC executed an amendment to the National Programmatic Agreement for the Collocation of Wireless Antennas (“NPA”) which expanded the categorical exclusions from Section 106 review under NEPA. Based on the Report and Order and the Amended NPA, some small wireless antennas can be installed without first being required to complete Section 106 review. — quote
Q. Does State law limit the ability for municipalities to regulate where small wireless facilities are located?
A: Yes. In 2018 the State of Illinois enacted the Small Wireless Facilities Deployment Act, 50 ILCS 840/1, et seq. (the “Act”). Section 40 of the Act expresses the General Assembly’s intent to preempt local control by stating a home rule unit may not regulate small wireless facilities in a manner inconsistent with this Act. In relation to regulating the location of a small wireless facility, Section 15(d)(3) of the Act states:
Subject to paragraph (6), an authority may not require the placement of small wireless facilities on any specific utility pole, or category of utility poles, or require multiple antenna systems on a single utility pole; however, with respect to an application for the collocation of a small wireless facility associated with a new utility pole, an authority may propose that the small wireless facility be collocated on an existing utility pole or existing wireless support structure within 100 feet of the proposed collocation, which the applicant shall accept if it has the right to use the alternate structure on reasonable terms and conditions and the alternate location and structure does not impose technical limits or additional material costs as determined by the applicant. The authority may require the applicant to provide a written certification describing the property rights, technical limits or material cost reasons the alternate location does not satisfy the criteria in this paragraph (3). Based on this statute, the Village has limited control over the location where a carrier can install a small wireless facility.
Q: What can the Village do to regulate small wireless facilities?
- Require that the small wireless facility does not interfere with the frequencies used by a public safety agency for public safety communications; a wireless provider shall install small wireless facilities of the type and frequency that will not cause unacceptable interference with a public safety agency’s communications equipment;
- Require that the wireless provider comply with applicable spacing requirements in applicable codes and ordinances concerning the location of ground-mounted equipment located in the right-of-way if the requirements include a waiver, zoning, or other process that addresses wireless provider requests for exception or variance and do not prohibit granting of such exceptions or variances;
- Require that the wireless provider comply with generally applicable standards that are consistent with this Act and adopted by an authority for construction and public safety in the rights-of-way, including, but not limited to, reasonable and nondiscriminatory wiring and cabling requirements, grounding requirements, utility pole extension requirements, and signage limitations; and shall comply with reasonable and nondiscriminatory requirements that are consistent with this Act and adopted by an authority regulating the location, size, surface area and height of small wireless facilities, or the abandonment and removal of small wireless facilities;
- Require that the wireless provider comply with the applicable codes and local code provisions or regulations that concern public safety;
- Require that site specific structural integrity analysis is provided by a structural engineer;
- Require that radio frequency emissions meet FCC standards and order or conduct compliance tests
- Require evidence of NEPA Review or an applicable exemption for all current and future applications.
Q. The Village Board approved additional restrictions to assist in regulating small wireless facilities summarized as follows:
We will require an environmental assessment shall be submitted in accordance with the FCC under 47 CFR § 1.1307 – ACTIONS THAT MAY HAVE A SIGNIFICANT ENVIRONMENTAL EFFECT, FOR WHICH ENVIRONMENTAL ASSESSMENTS (EAs) MUST BE PREPARED, for new communications facilities, and for existing communications facilities to which modifications to existing antennas or associated equipment is proposed, unless the facility and transmitter are granted exemptions by the FCC. 8-6-4 (D), (6), (k)
Before a permit is issued, a written affidavit must be submitted and signed by a radio frequency engineer certifying the communications facility’s compliance with applicable Federal Communications Commission (FCC) rules and regulations relative to radio frequency emissions, as well as technical data such as the frequencies in use, power output levels and antenna specifications, reasonably necessary to evaluate compliance with maximum permissible exposure levels set by the FCC, as well as a monitoring plan. 8-6-4 (D), (l)
We will require testing within 30 days of installation, and then quarterly, reports showing continuing compliance with FCC radio frequency emission limits including field testing at various points around the communications facility. 8-6-20 (E), (F), and (G)
We will be authorized to revoke a permit if the communications facility is found to have been in violation of FCC radio frequency emission standards and the Telecommunications Provider, after becoming aware of such violation, fails to shut-down or otherwise cure the violation within three (3) calendar days. Additionally, the amendments declare that facilities which exceed FCC radio frequency emissions are a public nuisance which may be summarily abated by the Village and fines assessed. 8-6-11 (A), 8-6-20 (F)
We will require camouflaging in the downtown business districts and historical areas of town. 86-15 (H) (3)
We will prohibit wireless facilities from being located closer than 300 feet from a school. 8-6-15 (A) (6) (d) (1)
Q: What can local residents do to enforce FCC regulations on radiation frequency exposure limits and effective radiated power limits?
A: Federal law grants a private right of action to people who are injured by reason of a common carrier’s acts or omissions which violate the FCC’s safety regulations. Not only does a resident have the right to sue for relief from his/her injuries, but the law grants attorneys’ fees if the resident prevails. Below is the complete language of 47 USC §206: In case any common carrier shall do, or cause or permit to be done, any act, matter, or thing in this Act prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this Act required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this Act, together with a reasonable counsel or attorney’s fee, to be fixed by the court in every case of recovery, which attorney’s fee shall be taxed and collected as part of the costs in the case.
Q. Has the state of Illinois created a 5G Task Force?
A. State Senator Suzy Glowiak Hilton (24th District) filed legislation in January to create a State 5G Task Force to identify any major health risks associated with the proliferation of 5G infrastructure. Although a subject matter hearing was held, the legislation has not proceeded and no task force has been organized by State government.
“In case any common carrier shall do, or cause or permit to be done, any act, matter, or thing in this chapter prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this chapter required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this chapter, together with a reasonable counsel or attorney’s fee, to be fixed by the court in every case of recovery, which attorney’s fee shall be taxed and collected as part of the costs in the case.”
(June 19, 1934, ch. 652, title II, § 206, 48 Stat. 1072.)”
Q: Where can I learn more information about 5G wireless?
A: The Village has established webpages dedicated to 5G wireless information. For those who want more information on the safety issues, the FCC has an RF Safety FAQ page, which we will post a link to on the Village’s website: https://www.fcc.gov/engineeringtechnology/electromagnetic-compatibility-division/radio-frequency-safety/faq/rf-safety#Q6 **
Ciesla Law Analysis of 7/2/2020 Clay County, IL Order
[On July 2, 2020], the Illinois Circuit Court in Clay County, Illinois issued an Order which declared that all executive orders issued by Governor J.B. Pritzker since April 8, 2020 related to COVID-19 are void (the “State Case”). Specifically, the Court declared that the 30-day period of emergency powers provided under the Illinois Emergency Management Agency Act, 20 ILCS 3305/1 et, seq., (the “Act”) lapsed on April 8, 2020. The Court also declared that Governor Pritzker had no Illinois constitutional authority to issue stay at home orders or close businesses.
A lot of Illinois citizens are asking ‘what does this mean?’ Simply put, it means that as of this moment, all restrictions on citizens and businesses are lifted. Masks are no longer required, social distancing is not required, restaurants can open to 100% indoor capacity without social distancing and gatherings of over 50 people are legal.
The Governor’s spokeswoman, Emily Bittner, says the Order is not final and did not include an injunction barring the State from enforcing the Governor’s phase four rules. No injunction is necessary to effectuate the ruling in the Order. The case was brought as a chancery case. Plaintiffs in chancery cases seek remedies that are non-monetary such as injunctions or, in this case, a declaration of the legality of executive orders. The Court declared that all of the Governor’s executive orders regarding COVID-19 are void as of April 8, 2020. Such declaration is the final say of the Circuit Court of Illinois. No injunction is needed as the Order simply erased the COVID-19 executive orders. If a citizen or a business acts in defiance of the now void executive orders and law enforcement or a government agency seeks to punish such action, then it would be proper for the person or business would seek an injunction to bar enforcement of the executive orders.
Ms. Bittner further stated that the Order is not binding because of a federal case ruling issued just moments before the Order. Ms. Bittner is referring to the case Illinois Republican Party, et, al., v. Pritzker, 20 C 3489 (N.D. Ill. Eastern Div. July 2, 2020) (the “Federal Case”). Such case has no bearing on the Order. In the Federal Case, the Federal Court ruled that one of the Governor’s executive orders limiting gatherings to 50 people did not violate the First Amendment of the U.S. Constitution. The Federal Court only analyzed the constitutionality of the effect of a single executive order. The Federal Court did not rule on whether the Governor had the authority to issue the executive order.
The State Case was filed in state court but the Governor attempted to transfer the case to federal court. The federal court declined to take the case and sent the case back to Illinois state court. Therefore, the federal court had the opportunity to rule on the merits of the Governor’s actions but the federal court found that there was no federal issue and that it was proper for a state court to decide a state issue of whether a Governor exceed his state statutory authority.
If the Order was not a final order and/or the Order is not binding, then why did Attorney General state immediately after the Order was issued that he was going to appeal? Such is a rhetorical question. The Order is a big deal and the Governor knows it. Of course, the Order will be appealed, the Governor has no choice. However, unless and until an appellate court overturns the Order, then the Governor’s COVID-19 executive orders do not exist.