CC 5-5-20 Study Session #1 Small Cell_Written CommunicationsCC 05-05-20
Special Meeting
Study Session #1,
Small Cell Facilities
Written Comments
1
Cyrah Caburian
From:Paul Albritton <pa@mallp.com>
Sent:Monday, May 4, 2020 5:06 PM
To:Steven Scharf; Darcy Paul; Rod Sinks; Liang Chao; Jon Robert Willey; City Council; Lauren Sapudar
Cc:Heather Minner Law Email; Chad Mosley; Roger Lee
Subject:Re: Verizon Wireless Letter, Study Session on Small Cells in the Right-of-Way - Council Special
Meeting Agenda, May 5, 2020 [Cupertino]
Attachments:Verizon Wireless Letter Corrected 05.04.20.pdf
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sender and know the content is safe.
Resending — Signature error corrected.
Paul
Paul Albritton
Mackenzie & Albritton, LLP
155 Sansome Street, Suite 800
San Francisco, California 94104
(415) 288-4000
On May 4, 2020, at 4:49 PM, Paul Albritton <pa@mallp.com> wrote:
Dear Councilmembers, attached please find our letter prepared on behalf of Verizon Wireless regarding the City's
policy for small cell facilities in the right‐of‐way to be considered at your meeting tomorrow evening.
Thank you.
<Verizon Wireless Letter 05.04.20.pdf>
Paul
Paul Albritton
Mackenzie & Albritton, LLP
155 Sansome Street, Suite 800
San Francisco, California 94104
(415) 288-4000
MACKENZIE & ALBRITTON LLP
155 SANSOME STREET, SUITE 800
SAN FRANCISCO, CALIFORNIA 94104
TELEPHONE 415 / 288-4000
FACSIMILE 415 / 288-4010
May 4, 2020
VIA EMAIL
Mayor Steven Scharf
Vice Mayor Darcy Paul
Councilmembers Rod Sinks,
Liang Chao and Jon Willey
City Council
City of Cupertino
10300 Torre Avenue
Cupertino, California 95014
Re: Study Session on Small Cell Facilities within the Public Right-of-Way
Council Special Meeting Agenda, May 5, 2020
Dear Mayor Scharf, Vice Mayor Paul and Councilmembers:
We write on behalf of Verizon Wireless regarding the City’s small cell policy
review scheduled for tomorrow evening. Verizon Wireless appreciates the Council
hosting a public study session on this topic. Over the last several years, Verizon Wireless
has worked tirelessly with the City to develop custom designs that have been approved in
select locations and installed with little or no controversy. Verizon Wireless continues to
work with the City, including public notice and addressing resident concerns, to identify
the ideal locations for additional small cells to provide reliable service to targeted areas of
Cupertino.
We encourage the City to work with wireless carriers when refining small cell
policies. Policies should accommodate facilities where needed and align with federal and
state law. In particular, the Federal Communications Commission (the “FCC”) issued an
order in 2018 that sets forth appropriate approval procedures for small cells (the
“Infrastructure Order”).1 Adopted to facilitate enhanced wireless service and new
technologies, the Infrastructure Order requires expedited review of small cells under
reasonable, objective standards. California Public Utilities Code Section 7901 grants
telephone corporations such as Verizon Wireless the right to place their equipment along
any right-of-way, subject to reasonable aesthetic review by the City.
Your staff report references small cell policies adopted by several other Bay Area
cities. However, other cities’ regulations do not always provide credible guidance. For
1 See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment,
Declaratory Ruling and Third Report and Order, FCC 18-133 (September 27, 2018).
Cupertino City Council
May 4, 2020
Page 2 of 2
example, a preempted school setback in Los Altos caused both Verizon Wireless and
AT&T to challenge that city’s regulations in federal court this year. A federal court
recently ruled in favor of Verizon Wireless in its lawsuit against Danville, because that
Town Council denied a small cell permit due to public pressure, illegally enforcing its
wireless ordinance.
Some of the concepts listed in your staff report conflict with the Infrastructure
Order and Section 7901. For example, Palo Alto imposes preempted school setbacks and
numerous other location restrictions, requiring applicants to seek an exception to each
restriction. Such exception processes are not objective and conflict with the FCC’s
Infrastructure Order. Generally, if a city’s regulations frustrate placement of new small
cells, they are prohibitive in violation of federal law.
The City should encourage placement of small cells where needed, with
reasonable, objective design standards. Verizon Wireless has worked cooperatively with
many jurisdictions, including Sunnyvale, San José, San Francisco, Sacramento and Napa,
to permit small cells in those cities, and would be pleased to work with City of Cupertino
staff on any needed policy refinements.
Should the City seek to modify current regulations, we encourage the Council to
direct staff to hold stakeholders meetings with industry representatives prior to proposing
new policies. Verizon Wireless would be pleased to discuss its network plan for
Cupertino and new small cell designs that provide enhanced service with minimal visual
impact. We look forward to working with the City to continue to maintain an enhanced
and improved Verizon Wireless network for the betterment of the community through
small cells.
Very truly yours,
Paul B. Albritton
cc: Heather Minner, Esq.
Chad Mosley
Roger Lee
1
Cyrah Caburian
From:swetha Thota <swethaeras@hotmail.com>
Sent:Tuesday, May 5, 2020 1:44 PM
To:City Council
Cc:Kiran Thota
Subject:Study Session on Small Cell Facilities within the Public Right of Way
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sender and know the content is safe.
Dear Cupertino City Council members,
We have received a letter from Verizon that they are partnering with City of Cupertino to install a small cell
(3 radio units and 3 antennae) on the light pole at our house. The letter stated that the pole was 60ft from
house (per google map), but we measured it to be 55ft and most importantly our backyard and swimming
pool are within 20 ft of the pole. My kids, 10 and 8, spend most of their time in the pool or backyard. We are
seriously concerned about the safety of the small cell (RF) on young kids, especially with a kid with
developmental disorder. I urge the city to seriously consider our request and ensure our safety.
As per Verizon's communication, they have a 27GHz Ericsson antenna. From NIH research report of Jan, 2019
[https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6254861/]
"International Agency for Research on Cancer (IARC) concluded that radiofrequency (RF) radiation in the
frequency range 30 kHz‐300 GHz is a ‘possible’ human carcinogen Group 2B (7,8).". As this is a new
technology, the number of studies are very limited and hardly any for young kids. Cupertino has a vibrant
student community, so I strongly recommend the City of Cupertino to study the ill‐effects of the new
technology before rolling out widely, especially at my house where the proposed install site is really close to
my house (in my lot).
Sincerely,
Dr. Swetha Thota, MD
and
Kiran Thota
1
Cyrah Caburian
From:Halinski, Timothy <Timothy.Halinski1@T-Mobile.com>
Sent:Tuesday, May 5, 2020 1:44 PM
To:City Clerk
Cc:Fuge, Dylan; Delarosa, Rod; McFadden, James
Subject:T-Mobile Comments - City Council Study Session on Small Cell Facilities in the Public ROW
Attachments:T-Mobile Comments Re City of Cupertino Small Cell Study Session.pdf
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Good afternoon,
Please find attached T‐Mobile’s comments for review by City Council in advance of tonight’s Study Session on Small Cell
Facilities within the Public Right of War. Let me know if you have any additional questions. Thank you,
Tim Halinski
Siting Advocacy Manager
Direct 678.690.3590 | Mobile 770.891.0499 | timothy.halinski1@t‐mobile.com
T‐Mobile.com | Follow T‐Mobile on Twitter, Facebook and Instagram
Via Email to cityclerk@cupertino.org
May 5, 2020
Mayor Steven Scharf & Members of the City Council
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014-3255
Re: T-Mobile Comments in Response to Cupertino’s Study Session on Small Cell Facilities
within the Public Right of Way
Dear Mayor Scharf and Members of the City Council
T-Mobile is dedicated to delivering and deploying the most ubiquitous network as
expeditiously as possible to serve its customers in the City and nationwide. T-Mobile does so by
carefully considering the balance between aesthetic impact to the community and serving our
customer base with our network needs. T-Mobile appreciates the City’s desire to consider ways
to improve and clarify its existing small cell requirements to achieve those goals. To that end, T-
Mobile offers the following comments on the issues Staff has identified for consideration in the
City’s upcoming “Study Session on Small Cell Facilities within the Public Right of Way.”
Issue: Supplement the City’s existing aesthetic and technical standards for small cells to ensure
changes in technology and the varying equipment used by different providers can be properly
accommodated.
T-Mobile Comment: T-Mobile supports aesthetic and technical standards that allow flexibility
to accommodate varied equipment and technology configurations that individual carriers may
choose to deploy based on their spectrum holdings and network needs. As the Staff Report
acknowledges, any aesthetic requirements must be “clearly-defined and ascertainable standard.”
Indeed, the FCC held that local aesthetic regulations must be: (1) reasonable, (2) no more
burdensome than those applied to other types of infrastructure deployments, and (3) objective
and published in advance.”1 Likewise, local regulations cannot mandate the use of particular
technologies or network designs,2 so the City is correct to seek to accommodate new and varied
technologies in its standards. Such an approach will help encourage deployments, while also
ensuring consistency with federal and state law.
1 In the Matter of Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment,
WC Dkt. Nos. 17-179 and 17-84, FCC 18-133, 33 FCC Rcd. 9088, ¶ 86 (rel. Sept. 27, 2018) (“Decl. Ruling”).
2 Id., ¶ 37, n.84.
City of Cupertino City Council
May 5, 2020
Page 2
Issue: Creating a small cell Application Checklist to further clarify submittal requirements and
materials.
T-Mobile Comment: T-Mobile supports any effort to clarify submittal requirements, so long as
the underlying application requirements are reasonable, and comply with applicable federal and
state law requirements. Such checklists help increase transparency around application
requirements and expectations.
Issue: Creating a formal Submittal Review Checklist to aid staff in further streamlining the
review process.
T-Mobile Comment: Again, T-Mobile supports any effort to clarify submittal requirements and
streamline application processing, so long as the underlying application requirements are
reasonable, and at least comply with federal and state law.
Issue: Provide clarification on spacing restrictions for small cell facilities owned by a specific
provider.
T-Mobile Comment: Generally, spacing requirements applied to small cell facilities are
discriminatory and an impermissible effective prohibition of service.
First, a “regulatory structure that gives an advantage to particular services or facilities has a
prohibitory effect, even if there are no express barriers to entry in the state or local code.”3 The
FCC’s order states that spacing requirements will be treated like other aesthetic requirements,
and thus must be (1) reasonable, (2) no more burdensome than those applied to other types of
infrastructure deployments, and (3) published in advance.4 As the FCC noted, “it is difficult to
envision any circumstances in which a municipality could reasonably promulgate a new
minimum spacing requirement that, in effect, prevents a provider from . . . collocating new
equipment on a structure already in use.”5 Moreover, as the Staff Report notes, local regulations
cannot “materially inhibit[] a provider’s ability to engage in any variety of activities related to its
provision of a covered service.”6 With respect to spacing requirements, that means, to be valid,
3 Id., ¶ 39.
4 Id., ¶¶ 87, 91.
5 Id., ¶ 91
6 Staff Report at 2.
City of Cupertino City Council
May 5, 2020
Page 3
they must be technologically feasible, as determined by the carrier and its network design and
needs.7
Second, as the FCC explained, to be “reasonable” the regulation must be technologically
feasible.8 Small wireless facilities have extremely focused coverage areas. Mandatory minimum
spacing requirements arbitrarily limit the deployment of small wireless facilities in an area and
would interfere with a provider’s ability to meeting its network design objectives Accordingly,
any attempt to limit a wireless carrier to artificial or arbitrary distances (or for example
prohibiting installation by one provider on consecutive poles) would effectively prohibit the
provision of service by creating gaps. There should be spacing limits on attachments to existing
infrastructure, and new poles should be subject to at most limits generally applied to all other
poles in the right of way.
Issue: Provide specific guidance that small cell facilities are not permitted within Public Utility
Easements located on private property. The City’s Master License Agreements with wireless
carriers only permit installation of small cell facilities on City-owned streetlight poles located in
the public right of way.
T-Mobile Comment: Federal law does not allow the City to adopt a blanket prohibition on the
installation of small cell facilities in Public Utility Easements (“PUEs”).9 As a threshold matter,
federal and California laws grant telecommunications providers, including wireless, the right to
attach to utility poles, and utility easements.10 Indeed, as the Staff Report notes, the City is
prohibited “from enforcing a blanket prohibition on installation of small cell facilities in an areas
or neighborhood.”11 Moreover, prohibiting the use of a type of easement would also be
unlawfully discriminatory. Any local regulation that “materially limits or inhibits the ability of
any competitor or potential competitor to compete in a fair and balanced legal and regulatory
framework” is preempted by Sections 253 and 332 of the Communications Act.12 Other
telecommunications carriers are permitted to install facilities in PUEs, therefore the City cannot
prohibit small cell wireless facilities from such locations.
It is important to note that there is a distinction between the City prohibiting the use of PUEs on
private property for small cell wireless facilities and the scope of the City’s MLA with wireless
carriers. While the City’s MLA may be limited to City-owned streetlight poles in the PROW,
that does not mean that small wireless facilities are, or can be, prohibited from installation in
7 See Decl. Ruling, ¶ 87.
8 Id. ¶ 87.
9 47 U.S.C. § 332(c)(7)(B)(i)(II).
10 See, e.g., 47 U.S.C. § 224.
11 Staff Report at 2-3.
12 Decl. Ruling, ¶¶ 35,57, and 119.
City of Cupertino City Council
May 5, 2020
Page 4
other locations. It is true that an applicant may be required to obtain some separate authorization
to install on a pole not owned by the City or in a PUE on private property, but that does not mean
that the City can prohibit such installations.
Issue: Require that any streetlight proposed to receive a small cell facility be posted with a
notification sign during the public notification period.
T-Mobile Comment: While T-Mobile does not object to this specific requirement, it cautions
that any permitting regulations that are compliant with federal and state law must be based upon
objective criteria. Therefore, an applications success or failure must depend solely on the
content of the application itself, and not on any public opinion related thereto. Accordingly,
when establishing public notice requirements, the City must be careful not to suggest a role for
the public in reviewing the application.
Issue: Restrict small cells from being placed on any pole located within 20’ of an existing
residence.
T-Mobile Comment: Just like separation/spacing requirements addressed above, establishing a
minimum distance for small cells from existing residences is likely to be an unlawfully
discriminatory aesthetic regulation. If there are already poles in the right of way within 20 feet
of an existing residence, the City cannot, and should not, prohibit installation of small wireless
facilities. Moreover, if not considered an aesthetic requirement, a blanket minimum distance
requirement from residences is expressly prohibited by federal law. As the Staff Report
recognizes “the FCC has established safety limits for Radio Frequency (RF) emissions from
wireless facilities,” and “a local government may not base its regulation of wireless facilities . . .
on RF emissions from a facility, as long as those emissions meet the FCC’s emission
standards.”13 A required minimum distance from residences, like several of the additional issues
addressed below, appears to be a proxy for regulating RF, which is clearly prohibited under
Federal law. All the City can do is require compliance with the federal standards.
Issue: Establish a minimum vertical clearance for small cell antennae at 26’ above surrounding
terrain (within 10’ of the pole).
T-Mobile Comment: As an initial matter, it is unclear what the basis is for the proposed 26-foot
minimum height. Depending on the existing poles in the City, it may be that such a height for
small cells is generally appropriate. However, like the proposed 20-foot set back from
residences, requiring a specific height and applying it to a 10-foot radius from the pole appears
to be a proxy for regulating RF emissions, and thus unlawful. Moreover, location of antenna
13 Staff Report at 2.
City of Cupertino City Council
May 5, 2020
Page 5
attachments on poles are governed by extensive safety and engineering regulations and standards
from both pole owners and the California PUC.
Issue: Establish a maximum vertical elevation for small cell antennae at 36’ above ground level
in residential areas and 41’ in commercial areas.
T-Mobile Comment: Any limit on the maximum height of a small cell antenna installed on a
pole in the PROW should be dependent upon the height of existing poles in the PROW. For
example, the federal definition of small wireless facility is a facility that does not extend the
height of an existing structure above 50 feet or 10 percent higher than the existing structure.
Issue: Provide clarification that small cell wireless antennae be oriented along the direction of
travel in public right of way, and not toward private property or occupied structures.
T-Mobile Comment: Any requirement as to the specific orientation of small cell wireless
antennae is an unlawful regulation of the provider’s network design. As the FCC made clear,
“local jurisdictions do not have the authority to require that providers offer certain types or levels
of service, or to dictate the design of a provider’s network .”14 Indeed, practically speaking
requiring antennas to be directed toward the travel lanes in the PROW is counter to the market
demand for service inside buildings. Moreover, the proposed requirement to direct antennas
away from occupied structures appears to be another unlawful proxy for RF regulation. Again,
all the City can require is that wireless facilities comply with the federal RF emissions standards,
it cannot seek to regulate potential exposure by requiring specific antenna orientations.
Issue: Consider implementing a time and materials fee structure for small cell permitting, to
ensure staffing costs are being recovered by the City.
T-Mobile Comment: Under federal law, any fees imposed on an applicant for a small cell
permit must be based on objectively reasonable costs and no higher than those charged to
similarly situated competitors.15 Accordingly, “a time and materials fee structure” appears
appropriate so long as it is verifiably based on the City’s costs of administering the permits and
is not higher than permit costs for similarly situated competitors.
14 Decl. Ruling, ¶ 37, n.84 (emphasis added).
15 Id., ¶ 48.
City of Cupertino City Council
May 5, 2020
Page 6
* * * *
Again, T-Mobile appreciates the opportunity to provide comment and assist the City in its
efforts to clarify and revise its small cell regulations to allow City residents to benefit from
reliable and ubiquitous wireless service. We would be happy to discuss these issues further.
Please feel free to contact me at Dylan.Fuge1@t-mobile.com.
Sincerely,
Dylan M. Fuge
Managing Corporate Counsel, Land Use
cc: Rod Delarosa, Siting Advocacy Manager – West Region
Jim McFadden, Site Development Manager – San Francisco
Tim Halinski, Siting Advocacy Manager – National Siting Advocacy
Sincerely,
1
Cyrah Caburian
From:City of Cupertino Written Correspondence
Subject:FW: Virtual Meeting 5/5/2020 Small Cell discussion
From: Edith Nelson <edie50@gmail.com>
Sent: Tuesday, May 5, 2020 3:21 PM
To: City Council <CityCouncil@cupertino.org>
Subject: Virtual Meeting 5/5/2020 Small Cell discussion
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the
sender and know the content is safe.
Good Afternoon. I have been communicating with Verizon and Modus LLC regarding the proposal for a new Small Cell
location adjacent to 1099 November Drive. (Verizon Site #: SF Cupertino 067). I have sent several emails and also had a
telephone conversation today with JoAnna Wang, Director of Government and Community Affairs at Modus LLC. Jacob
Olander Modus LLC was also on the call although I did not speak with him.
The following are my concerns/questions:
1) How many other Small Cells are you requesting permits for in Cupertino?
2) Who is paying for the permits?
3) What are their locations?
4) What other locations/Cupertino neighborhoods did you consider instead of the one on November Drive?
The addition of numerous small cells mean there are higher amounts of RF waves surrounding people at ALL TIMES.
More transmitters mean an increase in the amount of signals CONSTANTLY being sent to cell phones and other devices.
There has only been limited number of studies focused on direct correlation between cancer and radio frequency
waves. And, most have not included the effect on children. No studies have found a way to simulate the transmission
of 5G BASE STATIONS.
The bottom line is that nothing conclusive has been ruled out OR in and the long‐term effects remain unknown with
regard to possible cancer causing potential of cell and RF waves. There are unforeseen negative consequences that
could be associated with the growth of 5G including Security and Privacy risks as well as the Health risks.
Will there be a City Council Meeting to discuss this prior to a permit being issued?
My feeling is that Modus/Verizon should find another more suitable place for the small cell and that it should not be
installed in our residential neighborhood with children on November Drive.
Thank you for your consideration to these important questions and concerns. Cupertino is a small community. We must
think about the consequences of installing so many of these small cells all over our city and, thereby, being bombarded
with constant RF waves.
Best regards,
Edith Nelson
1095 November Drive
Cupertino, CA
(408) 257‐8065
(408) 642‐4621 (Cell or Text)