25. Additional Information Cc —S l►
Linda Lagergren a S
From: Mackenzie & Albritton LLP [reception @mallp.com]
Sent: Monday, April 04, 2011 11:25 AM
To: City Council
Cc: Gilbert Wong; Vice Mayor Mark Santoro; Kris Wang; Orrin Mahoney; Barry Chang; Paul
Albritton
Subject: Letter from Paul Albritton
Attachments: Albritton Letter 4.4.pdf
Hello. Attached please find a letter from attorney Paul Albritton writing on behalf of T-
Mobile regarding Item 25 on the City Council's April 5 agenda, the wireless facility at 11371
Bubb Road.
Please contact the Reception Desk at Mackenzie & Albritton with questions about transmit of
this letter.
Thank you.
Reception Desk
for Paul Albritton
Mackenzie & Albritton LLP
220 Sansome Street, 14th Floor
San Francisco, California 94014
(415) 288 -4000
reception @mallp.com
1
MACKENZIE & ALBRITTON LLP
220 SANSOME STREET, 14TH FLOOR
SAN FRANCISCO, CALIFORNIA 94104
TELEPHONE 415 / 288 -4000
FACSIMILE 415 i 288 -4010
April 4, 2.011
VIA EMAIL
Mayor Gilbert Wong
Vice Mayor Mark Santoro
Council Members Kris Wang,
Orrin Mahoney and Barry Chang
Cupertino City Council
Cupertino City Hall
10300 Torre Avenue
Cupertino, California 95014 -3232
Re: City Council Agenda, April °, 2011, Item 25
Appeal of DIR- 2010 -28
T- Mobile Facility at 11371 Bubb Road
Dear Mayor Wong, Vice Mayor Santoro and Council Members:
We write to you again on behalf of our client T- Mobile West Corporation ( "T-
Mobile") urging the City Council to deny the Petition for Reconsideration of Shaul
Berger ( "Appellant ") and affirm the minor modification allowing placement of a wireless
microcell on a utility pole located at 11371 Bubb Road (the "Approved Facility "). We
understand that Planning Department has provided you with copies of our legal letter
dated January 27, 2011 that sets forth the legal arguments that compel you to deny
Appellant's request in order to avoid running a:Foul of federal law and the Cupertino
Municipal Code ( "CMC "). As described in that letter, Appellant's sole objections to the
Approved Facility relate to environmental effects of radio frequency emissions, an area
entirely preempted by federal law. Further, Appellant raises no new relevant evidence nor
any evidence of abuse of discretion or procedure by the City Council that could warrant
reconsideration of this approval under CMC § 2.08.096.
At the February 1, 2011 City Council hearing on this matter, Appellant alleged to
have new information that would respond to the January 31, 2011 supplemental letter to
the City Council from Hammett & Edison, Inc., Consulting Engineers, which clearly
demonstrated that Appellant's calculations overstated emissions from the Approved
Facility by a factor of 15. Notwithstanding several contacts with Appellant by email and
telephone, as of the date of this letter, Appellant has never provided any further evidence
that would challenge the accuracy of the Hammett & Edison calculations, thus failing to
Cupertino City Council
April 4, 2011
Page 2 of 3
meet the new "relevant" evidence requirement for re- hearing under CMC § 2.08.096
while also failing to provide any "substantial" evidence for denial under federal law.
Rather than provide any further evidence of his claims, in an email to the Staff and City
Attorney on March 21, 2011, Appellant raises the prospective merger of AT &T and T-
Mobile as new grounds to support his Petition for Reconsideration. As further described
below, the prospective merger, announced on March 20, 2011, can have no bearing on
the Council's decision as: (i) this issue was not raised in Appellant's Petition for
Reconsideration; (ii) the merger remains speculative until government approvals have
been obtained (anticipated to require in excess of one year); and (iii) the carriers must be
treated independently under federal law until such time as the merger is completed.
While regulatory approval is pending, T- Mobile and AT &T are required to continue to
behave as independent competitors.
Section 2.08.096(B) of the CMC states:
B. A petition for reconsideration shall specify, in detail, each and every
ground for reconsideration. Failure of a petition to specify any particular
ground or grounds for reconsideration, precludes that particular omitted
ground or grounds from being raised or litigated in a subsequent judicial
proceeding.
The purpose of this section of the CMC is clear, that is, to prevent a project opponent
from continually raising new issues in an effort to defeat the project. Appellant makes no
mention of the merger in his petition and is time barred from raising that issue for
reconsideration at the April 5, 2011 hearing.
The Telecommunications Act of 1996 was enacted to encourage the rapid
deployment of advanced wireless telecommunications services to consumers. Consumers
benefit from the lower prices and innovations in technology and services that come from
competition within the wireless industry. In construing the Telecommunications Act, the
Federal Communications Commission (the "FCC "), in an Order entered in 2009,
determined that each wireless carrier is entitled to build out its own network facilities and
that local jurisdictions are prohibited from denying applications for new wireless
facilities based on the availability of wireless coverage in a specific area from a
competing wireless carrier. In accordance with the FCC's Order, the City of Cupertino
must focus on the gap in T- Mobile's wireless coverage and completely disregard the
wireless coverage available from any other wireless carrier. Coverage provided by any
other carrier is legally irrelevant to the issues pertaining to T- Mobile's permit application
since AT &T's coverage is of no benefit to T- Mobile's customers.
We note in passing that the Appellant has raised the recently approved AT &T
Facility at Results Way as a possible alternatiNe for the Approved Facility. As previously
reviewed by the Planning Commission and this Council, the radio signal propagation
from the AT &T facility at Results Way is too far North and does not provide service to
Cupertino City Council
April 4, 2011
Page 3 of 3
the significant gap in coverage that will be provided by the Approved Facility. We attach
the coverage map demonstrating that the AT &T Results Way facility does not meet T-
Mobile's coverage objectives for your current reference.
We trust that you agree that Appellant has failed to provide any new evidence, or
indeed any evidence, that would warrant reconsideration under the CMC or denial of the
Approved Facility under Federal law. It is time to stop Appellant's continuing delay of
the Approved Facility, which will provide needed wireless services to Cupertino and its
residents. We urge you to deny the Appellant's Petition for Reconsideration.
V ;.ry truly yours,
/OW
Paul B. Albritton
cc: Kevin Brinkley, Esq.
Mohammed Hill, Esq.
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