Effective Testimony at Tucson City Council Meeting, April 6, 2021
To: Dr. Russell Witte
From: Matt Kopec, <Matt.Kopec@tucsonaz.gov>
Subject: Re: Tucsonans’ Wireless Telecom Facilities Ordinance
May 3, 2021
I wanted to make sure we got back to you. Sorry for the delay. I spoke with the City Attorney’s Office about the sample ordinance.
Most of this proposed sample ordinance is directed at regulating RF emissions, which the City is preempted by federal law from doing. As for subsection E, it is a modification of the current Unified Development Code to encompass small wireless facilities (SWFs) which are specifically exempt from zoning review:
I. Subject to subsection K, paragraph 2, subdivision (c) of this section, a new, replacement or modified utility pole that is associated with the collocation of small wireless facilities and that is installed in the right-of-way is not subject to zoning review and approval…
A.R.S. § 9-592
C. Subject to this section and § 9-592, subsection J, a small wireless facility is classified as a permitted use and is not subject to zoning review or approval if the small wireless facility is collocated in a right-of-way in any zone.
A.R.S. § 9-593
So if the Council were to pass what is presented with the City would have to either strip SWFs collocated in the right of way from the Section E which I’m guessing is not the intent or violate ARS 9-592 and ARS 9-593 by subjecting these to zoning review.
We appreciate your interests in the issue. I hope this further explains what the City has to contend with.
Matt Kopec Council Aide Council Member Karin Uhlich
Ward 3 Council Office1510 E. Grant Road Tucson, AZ 85719(520) 791-4711 Matt.Kopec@tucsonaz.gov
wt: But... the "subject to" preceding these items is the most essential part of these clauses.
To: City Council Member Steve Kozachik firstname.lastname@example.org
From: Russell Witte, Ph.D. (on behalf of Tucson and Pima County residents)
Subject: Follow up re: Tucsonans Wireless Telecom Facilities Ordinance
May 10, 2021
Dear Mr. Kozachik,
I want to thank you for reaching out to me directly. I believe this is the first time I have received a direct return email from you, Steve, and it is much appreciated.
I am encouraged by your final comment about your willingness to collaborate in support of Tucson residents. That is exactly what elected representatives and their constituents should be doing in a government of the people, by the people, and for the people. You may be pleasantly surprised by the degree and breadth of expertise of your constituents, including physicians, engineers, public health, attorneys, and Telecom experts, who are motivated to collaborate directly with you to solve this urgent problem invading our lives. Many of us are quite familiar with state and federal Telecom law, which will be expanded on below.
You also made an important and relevant request:
“If you want to collaborate, I’m happy to do so . . . how about we drop the personal attacks?”
That is a point with which we agree wholeheartedly. It is the modifier statement with respect to the collaboration — “based on the tools I’ve got legally available”). That seems to be the sticking point. Indeed, all of us are searching for the best legal remedies.
To make tangible progress and balance policy regarding the over-powered invasion of our neighborhoods by wireless companies installing insufficiently regulated Wireless Telecommunications Facilities (WTFs) of any size or any “G” right next to our homes, the City of Tucson will have to recognize then mitigate harm to public safety, privacy and property value that result from such poor policy and execution of that policy. I ask that you please keep an open mind, be willing to explore different options and points-of-view, and most importantly explore the facts presented below that address the perceived legal constraints you raise.
In short, we must look beyond shortcuts, misinformation, and propaganda to negotiate a solution that threads the needle in the following ways:
- Complies with Federal and State Telecom statutes
- Recognizes which FCC Orders are merely “presumptive” and those which are not
- Provides sufficient telecommunications service, which is separate and distinct from information service
- Preserves the Quiet Enjoyment of Streets by mitigating the nuisances inherent in Wireless Telecommunications Facilities (WTFs) of any size or any “G” that are installed closer than 2,500 feet from homes, schools, and parks.
- Delivers actual public safety and privacy, achieved by, once again, mitigating nuisances of WTFs
The first important fact I want to point to is that telecommunications service is judged by the tests of “significant gap in coverage” and “least intrusive means” to close any proven gap in telecommunications service (see US Courts of Appeals Ninth Circuit Ruling in MetroPCS v San Francisco). Telecommunications service is simply the ability to make an outdoor phone call. There is no mention in Title 47 U.S.C. §332(c)(7) or in relevant case law (US Supreme Court Rulings and the US Courts of Appeals Ninth Circuit Rulings) of the needs for in-building coverage or wireless broadband. Both of these add-on services are merely business goals of the Wireless industry which are not supported by any preemption laws.
Any ruling from Circuit Courts other than the Ninth Circuit that did not reach the US Supreme Court are simply immaterial to the City of Tucson, which is located in the Ninth Circuit. That true statement invalidates your citation to Cellular Phone Taskforce v. F.C.C., 205 F.3d 82, 96 ( 2d Cir. 2000), restated here:
“Appellants argue that the absence of the word ‘operation’ from subsection (B)(iv) preserves for the states the right to regulate operations of wireless service facilities as well. Subsection (A) does not, however, preserve their authority to regulate such facilities’ operations. Therefore, the absence of the word “operation” from the subsequent limitation on their authority under subsection (B)(iv) does not grant such power.”
The highlighted modifier — 2d Cir. — is all you need to know. As such, this ruling binds judges only in the 2nd Circuit. Full stop. The Ruling is simply immaterial to the Ninth Circuit. I expect that City Attorney Rankin to understand this and am surprised that he directed you to misinform Tucson residents by referring to this citation.
Next, in matters of preemption law, we are clear that preemption of local authority is such a serious matter, that it can only depend on a plain reading of the language of the law. Judges are clear on this point. No “interpretation” is allowed. Just a plain reading of the language, as it exists.
Therefore, we invite you to read the plain language of Title 47 U.S.C. §332(c)(7) at https://wireamerica.org/compare, which also includes relevant excerpts from a 2005 United States Supreme Court Ruling in CITY OF RANCHO PALOS VERDES et al. v. ABRAMS (2005), a ruling which establishes both the principle of cooperative federalism and establishes the 1996-TCA Conference report as the definitive source that expresses the Congressional intent of the 1996-TCA. This US Supreme Court Ruling, therefore, makes the 1996-TCA Conference report Federal law that applies to all 11 geographical US Federal Appellate Circuits. This is important. See relevant excerpts from the 1996-TCA Conference report in Appendix A of this email.
I also invite you to read the plain language of AZ HB.2365 quoted below:
§9-593 (B). Except as provided in this section and sections 9‑592, 9‑594, 9‑595, 9‑597, 9‑598 and 9‑599, as applicable, an authority may not prohibit, regulate or charge for the collocation of small wireless facilities.
§9-592(K). An authority may require an application under this section for the installation of new, replacement or modified utility poles associated with the collocation of small wireless facilities. An authority shall approve an application unless the authority finds that the utility pole fails to comply with any of the following:
(2) Local code provisions or regulations that concern any of the following:
(a) public safety.
. . .
(4) The authority’s public safety and reasonable spacing requirements that concern the location of new utility poles in a right‑of‑way.
It is clear and not a matter of interpretation that the plain language cited above means the following:
- The regulation of the operations of Wireless Telecommunications Facilities was never preempted from local zoning authority by either the 1996-TCA or AZ HB.2365. We have successfully refuted any citation provided by City Attorneys across the country over the last five years. Please request from City Attorney Rankin only specific citations relevant to the Ninth Circuit. Tucson residents will not accept mere interpretations conveyed by Rankin— only direct citations to plain language of laws. We rely on the substantial written evidence, facts and law cited in this email.
- The City of Tucson has the duty and obligation to deliver actual public safety when issuing permits for Wireless Telecommunications Facilities of any size or any “G”. Just like a pool or a fence must meet local standards to achieve actual public safety, so must WTFs. As is clearly stated in the 1996-TCA Conference report:”It is not the intent of this provision to give preferential treatment to the personal wireless service industry in the processing of requests”
- The City’s decisions regarding “placement, construction and modification” of “personal wireless service facilities” — and only these few decisions — are constrained by the narrow restrictions listed in Title 47 U.S.C. §332(c)(7)(B), such as:”(iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions.”
- When the City of Tucson makes laws regarding the operations of “personal wireless service facilities”, the City is not constrained by the provisions of Title 47 U.S.C. §332(c)(7)(B) at all. They city is free to consider any reasonable standard of their choosing that provides both sufficient telecommunications service and does not create nuisances that ruin the Quiet Enjoyment of Streets. Fortunately, there is wide-spread acceptance by the Wireless industry that signal strength ranging from a low of -125 dBm to a high to -85 dBm is sufficient for telecommunications service. Ensuring that no carrier-specific frequency/channel/band exceeds -85 dBm in any areas accessible by human beings is a reasonable mitigation.
- Similarly, when the City writes laws to mitigate the maximum allowable power levels (Effective Radiated Power), desired hours of operations or any other operating parameter of “personal wireless service facilities”, the City is similarly NOT constrained at all. The only constraint is that the City’s laws cannot result in the prohibition of personal wireless service. This simply means that if residents can make outdoor wireless phone calls — most of the time — then there is no prohibition of personal wireless service.
Next, please note that the purpose of the 1996-TCA is the following:
U.S. Code Title 47 § 151 Purposes of Federal Communications Commission:
“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.”
The current City of Tucson policy regarding the over-powered invasion of our neighborhoods by Wireless companies installing insufficiently regulated WTFs of any size or any “G” right next to our homes is not resulting in the promotion of safety of life and property and is therefore violating the 1996-TCA. We need to bring Tucson’s local laws in compliance with Federal law by mitigating the nuisances of WTFs.
The facts presented above are well understood by telecom experts, and many cities have already taken advantage of these facts and laws to write protective Wireless Ordinances.
Next, please avoid making false statements such as the Tucsonans’ WTF Ordinance proposes regulating “RF emissions.” It does not. You must understand that there is an important distinction between Signal Strength/Effective Radiated Power and RF Emissions. We correctly state that the City can regulate the former, not the latter.
The Tucsonans WTF Ordinance cites laws that govern maximum permissible effective radiated power (ERP), which refers to the amount of power about to leave the antenna but not the RF emissions. The FCC and any electrical engineer (I’ve worked with pulsed microwave technology for 20 years) will confirm that these are separate and distinct properties of a wireless transmission facility.
The Tucsonans Ordinance was written by and for Tucson residents. It cites the 1996-TCA and HB.2365 extensively. We are collaborating with a diverse team of Telecom experts, including top attorneys who want to help the City of Tucson take maximum advantage of the laws at its disposal.
For example, the nation’s top Telecom attorney Andrew Campanelli has offered a free 30-60 minute Zoom teleconference for any City Council members or City Staff that would benefit from his expert advice.
Campanelli points out that even with HB.2365, Tucson has much more authority than they realize to regulate small- cell WTFs in ways that comply with both state and federal laws. Andrew has not only tried over 7,000 cases against the Wireless industry (winning over 80% of them), but he has also helped empower cities across the country by drafting strong Wireless ordinances that protect public safety, privacy and property values. We are happy to facilitate this free consultation.
The City of Chandler recently invited me to present to an audience of ~90 people the Tucsonans Ordinance sent to you on March 24. The CC members were so encouraged that they consulted at no cost with Mr. Campanelli, who revealed new possibilities that they had not previously considered and are now exploring more favorable options with residents and the city attorney. We are also pleased to hear that Pima County has agreed to consult with Mr. Campanelli. So, may we please schedule a similar consultation for Tucson with M&CC members and staff? When would you like to take advantage of this generous offer first proposed in March 2021?
As a next step, Steve, I suggest that you and I meet for 30 min (in person or via Zoom) to further discuss the Tucsonans WTF Ordinance and multiple ways we can collaborate to thread this needle, solve this problem and help get you re-elected.
I invite you to call me to schedule a convenient time in the next week.
Dr. Russell Witte, Ph.D.
Ward 6, 85719
Appendix A: Key Excerpts from 1996-TCA Conference Report (link)
The conference agreement creates a new section 704 which prevents Commission preemption of local and State land use decisions and preserves the authority of State and local governments over zoning and land use matters except in the limited circumstances set forth in the conference agreement. The conference agreement also provides a mechanism for judicial relief from zoning decisions that fail to comply with the provisions of this section. It is the intent of the conferees that other than under section 332(c)(7)(B)(iv)of the Communications Act of 1934 as amended by this Act and section 704 of the Telecommunications Act of 1996 the courts shall have exclusive jurisdiction over all other disputes arising under this section. Any pending Commission rulemaking concerning the preemption of local zoning authority over the placement, construction or modification of CMS facilities should be terminated.
When utilizing the term ‘‘functionally equivalent services’’ the conferees are referring only to personal wireless services as defined in this section that directly compete against one another. The intent of the conferees is to ensure that a State or local government does not in making a decision regarding the placement, construction and modification of facilities of personal wireless services described in this section unreasonably favor one competitor over another. 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.
Actions taken by State or local governments shall not prohibit or have the effect of prohibiting the placement, construction or modification of personal wireless services. It is the intent of this section that bans or policies that have the effect of banning personal wireless services or facilities not be allowed and that decisions be made on a case-by-case basis.
Under subsection (c)(7)(B)(ii), decisions are to be rendered in a reasonable period of time, taking into account the nature and scope of each request. 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.
>>> On 4/29/2021 2:44 PM, Steve Kozachik wrote:
Russell, I’ve responded to your group several times. One last attempt — your ordinance might work in other states, but Arizona has an explicit preemption that covers several elements of what you’re proposing. I’ve been working this issue w/in the constraints we’re under from a legal standpoint. Representatives from your group address M&C at call to the audience and make statements of a very personal nature suggesting I’m not engaged. That’s not the best way to build productive alliances aimed at finding solutions.
One last try — federal law prohibits local governments from regulating based on RF emissions. Here’s the citation from Title 47 U.S.C. 332:
“(iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions.” Title 47 U.S.C. § 332
Pursuant to federal case law, this prohibition applies to regulation of operations of personal wireless facilities as well.
“Appellants argue that the absence of the word ‘operation’ from subsection (B)(iv) preserves for the states the right to regulate operations of wireless service facilities as well. Subsection (A) does not, however, preserve their authority to regulate such facilities’ operations. Therefore, the absence of the word “operation” from the subsequent limitation on their authority under subsection (B)(iv) does not grant such power.” Cellular Phone Taskforce v. F.C.C., 205 F.3d 82, 96 (2d Cir. 2000)
We cannot deny a permit under Arizona state law for SWF’s unless they fail to comply w/local codes. The city does not, and cannot have a code that regulates RF emissions.
I know members of your group have heard this before, from me, and from our legal team. If you want to collaborate, I’m happy to do so based on the tools I’ve got legally available. With that, how about we drop the personal attacks and recognize how much I’m in fact doing in support of our local residents on this issue.
Subject: Tucsonans’ Wireless Telecommunications Facilities Ordinance
Dear City Council Member Steve Kozachik,
A large group of us are waiting patiently for your feedback on the Tucsonans’ Wireless Telecommunications Facilities Ordinance (TWTFO) sent to your office on March 24, 2021.
Please let us know by Monday May 3 at 5pm if you are willing to work with your constituents to get this on the public agenda by answering a few simple questions in the attached letter.
I promise to forward your response in a timely manner to the signatories in the letter to keep them updated.
Dr. Russell Witte, Ph.D.
Tucson Resident, Ward 6
Professor and Business Owner
The TWTFO can be found here: https://www.safetechtucson.com/the-ordinance