As discussed in an earlier post, Crown Castle is attempting to deploy 80 cell towers across the peninsula. The majority of these sites are located in the heart of residential neighborhoods in close proximity to homes. Here’s an example, the homes are less than 50 feet away.
Crown Castle claims this unfortunate situation just can’t be avoided. Their site justification to Palos Verdes Estates states:
The selected node locations maximize the RF coverage of the node and minimize interference/overlap with the other nodes of the system, resulting in a lower overall number of facilities for the Network and a less intrusive system. Each node provides an effective relay of signal from the adjacent node, so that ubiquitous coverage is provided throughout the Service Area. Because each node is locationally dependent on the other nodes of the Network, moving a node too far from its proposed location will result in an inability meet coverage objectives and thereby impair the Network.(emphasis added)
As residents have quickly found out, Crown Castle’s willingness to move a site typically is little more that moving it across the street or down the block. Instead of it being an eyesore in front of your house, it’s an eyesore in front of your neighbor’s house. Their “solution” pits neighbor against neighbor, rather than where the focus should be, at the out-of-state corporation invading their quiet residential street.
“Time, place, and manner” and “least intrusive means”
So what can cities do about this? A lot, actually. The California Public Utility Code grants municipalities “reasonable control as to the time, place, and manner” regarding cell sites in the public right of way. Under federal law, municipalities retain authority to ensure sites are implemented using the “least intrusive means”. These two critically important concepts are the basis for the municipal right to regulate the location of intrusive cell sites.
There are limits on exercising this right. Under state law, municipalities can regulate placement “as not to incommode the public use” of the right of way. In Sprint vs. Palos Verdes Estates, the 9th Circuit court ruled that this includes aesthetics. But a city cannot use this right to regulate sites based on radio frequency health concerns (as an example) since this is prohibited by federal law. Also under federal law, a city cannot regulate a site in such a way to cause an “effective prohibition” of service. In other words, regulations can’t be so restrictive no sites are allowed, particularly if a “significant gap” in service exists. All of these quoted phrases are key concepts from state and federal law.
So what is happening in Palos Verdes Estates?
Residents have been very vocal with Crown Castle that they insist these ugly sites be placed away from homes and outside of neighborhoods in less intrusive locations. Crown Castle has repeatedly stated that locations more than a few dozen feet from the proposed location are “infeasible”. (They say that word a lot.) No evidence has ever been given, Crown Castle simply proclaims it, and they expect the City to accept it. They are the experts here after all.
That is not how it is supposed to work. The City has the right to require submission of a “meaningful comparative analysis” that demonstrates why locations preferred by the City can’t be used. As far as we can tell, PVE has never actually obtained any of these alleged analyses. Crown Castle says “infeasible” and that’s the end of it.
In addition, federal law entitles service free of a “significant gap” not any gap. There is a big difference; they are not entitled to perfect service. A less than happy engineer doesn’t establish a “significant gap” in service. Quoting from MetroPCS vs. San Francisco:
In so holding, the court is mindful that the TCA [Ed: Telecommunications Act] does not guarantee MetroPCS seamless coverage in every location within the Richmond district. Indeed, courts have expressly recognized that the presence of “dead zones,” or pockets in which coverage does not exist, are not actionable for purposes of arguing effective prohibition claims under the TCA. (MetroPCS Inc. v. City and County of San Francisco (N.D.Cal. 2006) 2006)
It’s hard to not conclude that when Crown Castle says an alternate location is “infeasible” they actually mean it will be inconvenient. Translation: it will cost more, it will be additional work, it will need analysis updates, new fiber to be run, etc. But “least intrusive means” doesn’t mean least expensive means.
(A side note – Crown Castle already ran all their fiber underground to sites before any of the antenna locations were approved. They did this at their own risk, there was no guarantee their antenna locations would be approved.)
Case study – Palos Verdes Drive West at Via Valmonte
Crown Castle proposed a site within the right of way on Palos Verdes Drive North between Via Valmonte and Via Pavion. Nearby residents objected to the location, as the proposed tower was only about 70 feet from their house, 30 feet from their backyard, and plainly visible from their property. Crown Castle had made no effort to screen or otherwise discreetly locate the site. The residents requested Crown Castle consider alternate locations including a seemingly ideal spot 300 feet south of the proposed site. This alternate was adjacent to undeveloped parkland, far from homes, and could be landscaped to screen the site from view.
Here’s a picture of the alternate, mature trees already provide screening and there’s plenty of room for new trees and landscaping to hide the site.
Crown Castle responded that all the alternate sites were “infeasible” (there’s that word again), and they were going to relocate the site to a stop sign at the corner of Palos Verdes Drive North at Via Valmonte. This location was even worse for the residents as it was only 30 feet from their home, plainly visible from all their front windows, and detracted from the picturesque street scene in front of their home. It seems this might have been a tactic to intimidate residents into accepting the original location.
Was the alternate really infeasible?
An independent RF engineer provided coverage maps comparing the original proposed site to the alternate location that was supposedly infeasible. First off, here’s the coverage from the original location:
Without getting too technical, the green area shows coverage levels Crown Castle claims is required. Now here’s the coverage from the alternate location using the same antennas and equipment.
Compare the green area to the map above and you’ll see that it is nearly identical. It’s not exactly the same, but remember the concept of “significant gap”, they are not entitled to perfect coverage.
So what’s wrong with the alternate? Nothing with regards to coverage but plenty with regards to Crown Castle’s sunk costs. They already ran fiber underground to the original site (at risk), now they would have to run more. They would also have to redo engineering, a pain in the neck and added costs to be sure, but irrelevant regarding the feasibility of a preferred location, particularly based on zero objective evidence.
Crown Castle brought these problems on themselves and have only themselves to blame. If they had selected sites based on minimally intrusive locations, this could have been avoided. Instead they carved the peninsula up into a big grid and plopped sites in the middle of each square without any regard to impact on City aesthetics and the resident’s interests.
Peninsula residents don’t have to accept this.
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