We’ve had this blog online since May. In the last twelve weeks we’ve documented numerous troubling aspects of Crown Castle’s cell tower deployment in Palos Verdes. So far we’ve covered:
- Mistaken photo simulations that show equipment smaller than actuality, and are missing important components entirely (here)
- “Not to scale” drawings with equipment size distorted and appearing smaller than actuality (here)
- Tactics apparently intended to keep residents in the dark about the coming cell towers until the last minute (here)
- Cheap and lazy designs with no regard for aesthetics or property values (here)
- Questionable “mock-ups” that make more expensive configurations preferred by the city look far more intrusive than they really are (here)
- Awful workmanship on existing sites, particularly with cable routing and “spray can” paint jobs (here)
- Existing installations on utility poles that violate CPUC safety and reliability regulations (here)
- Completely unsupported statments that anything other than the cheap installation they had already planned was “infeasible” (here)
- Mistaken and highly questionable technical claims regarding existing coverage and an alleged “significant gap” (here)
It’s quite a list, and as you can see from the links, we’ve posted plenty to back it all up. You might think there isn’t much more to cover. You’d be wrong. Fortunately, we like to write and it looks like we’ll have plenty more opportunities.
False Claims Regarding Section 6409
In 2012, Congress passed the Middle Class Tax Relief and Job Creation Act. Buried deep within the act was gift to the wireless industry, no doubt payback for campaign contributions. It’s known as section 6409 and it significantly limits a city’s regulatory authority with regards to modifications on existing sites.
In short, a city cannot deny permission to modify an existing wireless tower (built specifically for antennas) or a base station (a structure that houses licensed wireless equipment) provided the modifications don’t exceed certain size limits. Section 6409, and the subsequent FCC rulemaking that clarified some terms, make it unambiguously clear that it only applies to existing sites. There is no confusion or controversy on this.
Crown Castle is attempting to deploy 22 new sites in Palos Verdes Estates and 26 new sites (so far) in Rancho Palos Verdes. As we’ve stated before, many are in the heart of residential neighborhoods, most of those are right in front of homes. All of these are brand new sites; none of them are “existing wireless towers or base stations” under Section 6409. It’s crystal clear, section 6409 does not apply to these sites. The City has the full right to deny these sites on aesthetic grounds under both state and federal law. Crown Castle apparently wants city staff to think otherwise.
Mistatments when the City is ignorant of the law
As we’ve discussed before, Crown Castle seems to have a habit of misstating the law to city staff who aren’t experts and don’t know better. One of Crown Castle’s prior entities, Newpath Networks of California, had virtually raised this to an art form. In one of the most egregious examples, they convinced the city government of Davis, California into believing their 37-site proposed cell tower deployment was exempt from Davis’s wireless ordinance. They did this by erroneously claiming only CPUC could regulate the sites under newly passed regulations.
After public outcry, Davis wised up and revoked the permits that had been issued based on these statements. Newpath sued, and lost. The whole ordeal caused such a stink that CPUC actually vacated the regulations (GO-170) that Newpath had referenced. If you check out press accounts of the debacle you’ll find at least one Newpath name very familiar to those following the current Palos Verdes deployment.
In this case, they are trying to insinuate that these brand new sites fall under Section 6409 and thus the city can’t deny them and must approve them. Of course it’s blatantly untrue, and in our opinion, it’s a telling sign that something really stinks.
False Section 6409 Claims in Palos Verdes Estates
Palos Verdes Estates requires a site justification for new proposed cell towers. The justification provided by Crown Castle was inadequate, mostly copy and paste claims of legal entitlement without any real justification for each of the highly intrusive sites proposed. Under a section entitled “Applicable Federal Law”, they trot out some interesting claims regarding Section 6409 (full document here):
Note the area highlighted in the red box in particular, as the audacity of their claims is truly breathtaking. First they claim this a “qualifying collocation facility” which is blatantly false. This was from a brand new site application in lower Lunada Bay. The same language is included in all the new site applications.
Next they claim, “an argument may be made that the Project qualifies for ministerial approval under the Spectrum Act”. An interesting choice of words, “an argument may be made…”
We agree that an argument may be made; an utterly false argument seemingly intended to lead city staff into thinking they have no choice but to approve these sites. For those who aren’t up on legalese, “ministerial approval” means “a statutory mandate without exercise of personal judgment or discretion”. Completely false but not surprising in the least based on what we’ve seen in the past.
The same false claims in Rancho Palos Verdes
Under RPV’s new comprehensive wireless ordinance, applicants are also required to prepare a site justification and to specifically state the applicable laws that apply. Here’s an application excerpt submitted by Crown Castle for a brand new installation proposed for a residential streetlight (full document here).
Knock us over with a feather, they again mistakenly claim Section 6409 applies. Of the 26 newly filed brand new sites submitted to RPV, they’ve wrongly claimed section 6409 applies in about half of them. They also incorrectly claim a 90 day shot clock here rather than the correct 150 day shot clock, but we’ll leave that for a future post.
Note above where RPV requires a description supporting their selections in Exhibit A, here’s an excerpt of what was submitted (full document here):
It’s the same copy and paste claims of section 6409 applicability we saw over in PVE. Check out the big bold “may not deny, and shall approve“. Since section 6409 doesn’t apply this is completely irrelevant. Note in the red box that here they omitted the ridiculous “an argument can be made…” stuff probably realizing they wouldn’t be able to get away with that wording again.
We obtained RPV’s notice of incomplete application (it’s a public record along with the other documents shown here) as we wanted to ensure the City called them out on this garbage. We were gratified to see that not only did RPV’s legal team conclusively state Section 6409 did not apply, but they had this to say regarding Crown Castle’s copy and paste claims of entitlement:
Applicant should appropriately limit the scope of its responses to the questions presented.
That looks like lawyer talk for calling BS to us.
What this says about Crown Castle
It seems to us that Crown Castle thinks this is some sort of game. To date it’s probably worked far more often than not, as we doubt most cities have the legal expertise to challenge this stuff. There seems to be no downside for them as the only thing that happens if they are caught is that they are told to go back and fix it.
We’ve meticulously documented this to inform Palos Verdes residents, as a resource for those in other communities, and also to ensure it’s not forgotten in the event this whole mess turns ugly. Palos Verdes residents can be assured we will double-check every single claim of legal entitlement, site intrusiveness, or technical feasibility. Crown Castle has shown over and over that their statements need to be verified.
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