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FCC Amends Small Cell Rules per DC Circuit Court

Some commenters have described the DC Circuit’s decision in United Keetoowah Band of Cherokee Indians v. FCC, No. 18–1129, 2019 WL 3756373 (D.C. Cir Aug. 9, 2019) as being some sort of a magic bullet 5G/small cell killer.  They also claim that the decision nullifies much of the FCC’s small cell rules, citing primarily to the personal observations of a FCC Commissioner.

I wish all that were true.

In fact, however, those commenters are only expressing their wishful, non-lawyer’s reading of the limited scope of the United Keetoowah decision.  That’s why the ten local government cases now being litigated in the 9th Circuit remain the most important fights citizens have to truly set aside the FCC’s misguided, unjustified, industry-loving rules.

Lets take a look at what the FCC actually did to respond to the D.C. Circuit’s United Keetoowah decision:

First, the FCC amended 47 C.R.R. § 1.1312 to reduce the scope of the rule.  Here’s a before and after comparison of the existing rule followed by the replacement rule that becomes effective on 12/5/2019:

Original
Text
Text Effective
12/5/2019
Text
Difference
§ 1.1312 Facilities for which no preconstruction authorization is required. § 1.1312 Facilities for which no preconstruction authorization is required. None
(a) In the case of facilities for which no Commission authorization prior to construction is required by the Commission‘s rules and regulations the licensee or applicant shall initially ascertain whether the proposed facility may have a significant environmental impact as defined in § 1.1307 of this part or is categorically excluded from environmental processing under § 1.1306 of this part. (a) In the case of facilities for which no Commission authorization prior to construction is required by the Commission‘s rules and regulations the licensee or applicant shall initially ascertain whether the proposed facility may have a significant environmental impact as defined in § 1.1307 of this part or is categorically excluded from environmental processing under § 1.1306 of this part. None
(b) If a facility covered by paragraph (a) of this section may have a significant environmental impact, the information required by § 1.1311 of this part shall be submitted by the licensee or applicant and ruled on by the Commission, and environmental processing (if invoked) shall be completed, see § 1.1308 of this part, prior to the initiation of construction of the facility. (b) If a facility covered by paragraph (a) of this section may have a significant environmental impact, the information required by § 1.1311 of this part shall be submitted by the licensee or applicant and ruled on by the Commission, and environmental processing (if invoked) shall be completed, see § 1.1308 of this part, prior to the initiation of construction of the facility. None
(c) If a facility covered by paragraph (a) of this section is categorically excluded from environmental processing, the licensee or applicant may proceed with construction and operation of the facility in accordance with the applicable licensing rules and procedures. (c) If a facility covered by paragraph (a) of this section is categorically excluded from environmental processing, the licensee or applicant may proceed with construction and operation of the facility in accordance with the applicable licensing rules and procedures. None
(d) If, following the initiation of construction under this section, the licensee or applicant discovers that the proposed facility may have a significant environmental effect, it shall immediately cease construction which may have that effect, and submit the information required by § 1.1311 of this part. The Commission shall rule on that submission and complete further environmental processing (if invoked), see § 1.1308 of this part, before such construction is resumed. (d) If, following the initiation of construction under this section, the licensee or applicant discovers that the proposed facility may have a significant environmental effect, it shall immediately cease construction which may have that effect, and submit the information required by § 1.1311 of this part. The Commission shall rule on that submission and complete further environmental processing (if invoked), see § 1.1308 of this part, before such construction is resumed. None
(e) Paragraphs (a) through (d) of this section shall not apply: e) Paragraphs (a) through (d) of this section shall not apply to the construction of mobile stations. Rule changed to limit the scope of (a) through (d) to not apply to the construction of mobile stations.
(1) To the construction of mobile stations; or

(2) Where the deployment of facilities meets the following conditions:

(i) The facilities are mounted on structures 50 feet or less in height including their antennas as defined in § 1.1320(d), or the facilities are mounted on structures no more than 10 percent taller than other adjacent structures, or the facilities 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;

(ii) Each antenna associated with the deployment, excluding the associated equipment (as defined in the definition of antenna in § 1.1320(d)), is no more than three cubic feet in volume;

(iii) 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; and

(iv) The facilities do not require antenna structure registration under part 17 of this chapter; and

(v) The facilities are not located on tribal lands, as defined under 36 CFR 800.16(x); and

(vi) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in § 1.1307(b).

Text deleted

Then the Commission changed one small element of 47 C.F.R. § 1.6002 to delete the cross reference back to § 1.1312(e)(2).  Here’s a before and after comparison of the existing rule followed by the replacement rule that becomes effective on 12/5/2019:

Original
Text

Text Effective
12/5/2019

Text
Difference

(l) Small wireless facilities, consistent with § 1.1312(e)(2), are facilities that meet each of the following conditions: (l) Small wireless facilities are facilities that meet each of the following conditions: Deleted: “, consistent with § 1.1312(e)(2),”
(1) The facilities –

(i) Are mounted on structures 50 feet or less in height including their antennas as defined in § 1.1320(d); or

(1) The facilities –

(i) Are mounted on structures 50 feet or less in height including their antennas as defined in § 1.1320(d); or

None
(ii) Are mounted on structures no more than 10 percent taller than other adjacent structures; or

 

(ii) Are mounted on structures no more than 10 percent taller than other adjacent structures; or

 

None

 

(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;

 

(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;

 

None

 

(2) Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of “antenna” in § 1.1320(d)), is no more than three cubic feet in volume;

 

(2) Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of antenna in § 1.1320(d)), is no more than three cubic feet in volume;

 

None

 

(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;

 

(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;

 

None

 

(4) The facilities do not require antenna structure registration under part 17 of this chapter;

 

(4) The facilities do not require antenna structure registration under part 17 of this chapter;

 

None

 

(5) The facilities are not located on Tribal lands, as defined under 36 CFR 800.16(x); and

 

(5) The facilities are not located on Tribal lands, as defined under 36 CFR 800.16(x); and

 

None

 

(6) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in § 1.1307(b).

 

(6) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in § 1.1307(b).

 

None

 

don’t believe me? Take a look at a PDF copy of the official FCC rule changes published in the Federal Register on November 5, 2019, and effective on December 5, 2019: Small Cell Rules Changes Effective 12-5-2019 – FCC2019-24071.

Are the new rule changes a small cell killer? Sorry…No.

…a 5G killer? Not even close.

…wishful thinking? Yup.

Let’s keep our eyes on the right Small Cell rules fight, being fought in the right venue…the 9th Circuit Court of Appeals.

If you’re a member of the public really interested in changing fundamental concepts of wireless rules to be set and/or enforced by the FCC, then you should also fight your fight in the right venue, which is not before a local government that is obligated to follow state and federal laws, regardless of how little some may think about following the laws that exist.  Consider visiting your Member of Congress and your U.S. Senators. Only they have the power to accomplish the fundamental changes that some members of the public wish to see happen.

Jonathan

 

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Coalition of Concerned Utilities Reply Comments in 6409(a) Petition

Here’s a choice quote from the Coalition of Concerned Utilities who oppose the wireless industry’s attempt to get the FCC to change the 6409(a) rules:

Careless requests by Crown Castle and others to relax utility construction and design standards and to experiment downward is like asking the National Highway Traffic Safety Administration to order bumpers, airbags, head restraints and other safety gear to be removed to see whether cars can be built for less money without an increase in injuries.

If you’d like to read the entire reply comments from the CCU, please  CLICK HERE.

 

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Western Communities Coalition 6409(a) Reply Comments

Last night the Western Communities Coalition, represented by Telecom Law Firm PC (San Diego and Los Angeles) and Kissinger and Fellman (Denver), filed lengthy and detailed Reply Comments with the FCC in the current Section 6409(a) proceedings.

The Coalition’s Reply Comments site widespread wireless industry misrepresentations and abuses of the current process, and how those misrepresentations and abuse has can only become worse if the Commission grants the industry’s petitions.

Unfortunately, the Commission’s reply period was far less than sought by local governments and others maligned by the wireless industry. We will be traveling to Washington DC to meet with the Commission armed with many, many more very specific and damming examples about wireless industry exaggerations and outright misrepresentations perpetrated against local governments, and now the Commission.

Linked below is a copy of the WCC Reply Comments.

Jonathan

JOINT REPLY COMMENTS (19-250)

 

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The Western Communities Coalition FCC filing…

…will be posted here tomorrow.  Watch this space.

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Interesting Cell Siting RF Discussion in Thousand Oaks, California

Last night, the City of Thousand Oaks, California Planning Commission heard and acted on a citizen’s  appeal of a camouflaged Verizon macrocell cell site that was previously approved by the City’s Hearing Officer.  The Appellant opposing the approval was Prof. Trevor G. Marshall.  Applicant Verizon Wireless was represented by Kevin P. Sullivan, Esq.

The design of the proposed camouflaged cell site is as shown below (from Verizon’s design plans).

(Click on the image to enlarge it; photo simulations of the project may be viewed in the meeting video, linked below.)

Nearly 100% of the public testimony focused on RF emission issues and concerns.  The Commission, public, and staff discussions are informative.  They span health concerns, administrative process, duty of loyalty, and the federal government/local government relationship regarding RF emissions.

After nearly 3 hours of staff presentations, quite thoughtful public testimony, and post-public hearing discussions, the City’s Planning Commissioners voted to uphold the Hearing Officer’s approval of the cell site project on a 4-0 vote (one absence).

To watch the hearing, visit Planning Commission 11-18-19 Meeting and click below the screen on Item 7A.
To view the staff report, with links to all of the exhibits, look at this PDF: Item 7A Staff Report.

Jonathan

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Dr. Kramer elevated to SCTE Senior Member Emeritus

I’m extremely pleased to announce that the Society of Cable Telecommunications Engineer–the SCTE–has elevated my membership status to Senior Member-Emeritus. Of the roughly 20,000 SCTE members throughout the world today, I’m one of only 41 SCTE members to achieve both distinctions.

Since joining the SCTE in 1979, I’ve been privileged to serve and advise the . . . → Read More: Dr. Kramer elevated to SCTE Senior Member Emeritus

We take the 6409(a) fight to the FCC

I am very proud to announce that last night, a broad coalition of local governments and government agencies that we represent filed nearly 600 pages of comments to oppose the wireless industry’s latest attempts to gut wireless siting controls from citizens and their local governments.

The name of the coalition is “The Western Communities Coalition”.

. . . → Read More: We take the 6409(a) fight to the FCC

Fill Your Swimming Pool at the Gas Station?

There is a palpable public fear in some quarters of nascent 5G cell sites. That public’s fear seems centered on radio frequency emissions, and are often based on Internet-spread claims of potential negative health impacts to adults, children, infants, animals, bees, trees, bushes, birds, insects…

I won’t debate the underlying question as to whether those . . . → Read More: Fill Your Swimming Pool at the Gas Station?

My 9/11 Story – Updated

(Note: I originally posted a shorter version of this story on 9/11/12, some 7 years ago today. This year I add many more details to round out some of the edges. -jlk)

On this important day, like many others, I offer my ‘where were you on 9/11?” story.

I was having a quiet breakfast when . . . → Read More: My 9/11 Story – Updated

When Wireless Firms Hire Electeds

In my view, there is (at the very least least) a fundamental ethical disconnect when local government elected officials then get hired by wireless firms, and then use their elected position in connection with promoting the wireless industry agenda nearby jurisdictions. This is not like an elected operating a local pharmacy, and being greeted with, . . . → Read More: When Wireless Firms Hire Electeds