Tuesday, November 03, 2015

Important - Significant Gap, Capacity, Applicability of TCA to 4G LTE

Important - Significant Gap, Capacity, Applicability of TCA to 4G LTE


Please forward to groups fighting cell towers.  This is important info.  Thanks!  (Dr. Moskowitz, Theodora just sent me this article http://sanfrancisco.cbslocal.com/2015/10/31/san-francisco-residents-battle-wireless-companies-cell-tower-building-boom-super-bowl-fifty/ and I thought you could forward to Mr. Chincarini since it appears you might know him.  The article says Verizon is looking to add capacity, and nothing about filling a significant gap.)

There was a US District Court case where Verizon sued Fairfax County, VA, that was just decided Oct. 22, 2015.

The County Board of Supervisors rejected Verizon for a cell tower at a church on Dec. 23, 2014, and Vz appealed.  The US District Ct ruled for the county. There's LOTS of important info. in this ruling and worth reading if you are currently fighting a cell tower installation.  However, I will only focus on items pertaining to significant gap, capacity, and applicability of the TCA to 4G LTE.

1) TCA did not apply to wireless broadband services (i.e. 4G LTE) until March 12, 2015.  
In 2007, FCC issued a declaratory Ruling 07-53 that a facility that provided broadband internet access only such as 4G LTE did not qualify as personal wireless service defined by the TCA, and was instead an "information service," unless voice service was to be comingled with the facility, in which case then it would be considered a personal wireless facility subject to the limitations on local zoning authority in 1996 TCA section 332 (c)(7)(B) .

But unfortunately, on March 12, 2015, FCC reclassified mobile broadband (i.e. 4G LTE) as a "commercial mobile service" which then qualified it for the TCA's protections.  (see pp. 43-46).  Reason I bring this up is that if you are currently involved in a case/appeal where a decision was made by your city prior to March 12, 2015 regarding a faciity that would provide 4G LTE data only services (no voice), then it does NOT qualify under TCA's protections, meaning then that the application for the facility is subject only to the city's zoning codes.   Here's a case where the city rejected a tower based on its zoning codes only and did not consider the TCA because the applicant was only putting in wireless broadband services, and US District Ct ruled in favor of the city in Clear Wireless LLC v. Building Department of Lynbrook, New York 2012, U.S. District Court .  https://scholar.google.com/scholar_case?case=16112211057928303554&q=clear+wireless+v.+lynbrook&hl=en&as_sdt=2,33&as_vis=1 So if the application was for broadband internet only without voice services, the court would not take the TCA protections into account

2) Significant Gap - If you can prove that there is no significant gap, then cities do NOT have to grant access
Wireless provider has the burden of proof to prove "Significant Gap" in order to prove the facility is needed per the 1996 TCA.  "Gap" means no signal, "significant" means over a large area affecting a lot of people.  So if there is already signal in the area they want to install the tower, then there is no significant gap.  Even if there was a gap, it would have to be significant. (I can tell you there are no significant gaps left anywhere, so disproving significant gap is not difficult - see video of hearing at bottom) In this case, Verizon did not provide sufficient evidence of significant gap, only that they sought to improve existing coverage and provide capacity relief.  Improving existing coverage and providing capacity relief are NOT provided for in the TCA.  (see pp. 44-45)  However, the wireless industry is trying to remove proof of gap now and substitute with capacity - don't know how much longer we will be able to fight with signficant gap argument (October 7, 2015 the President of the PCIA appeared before Senate Committee - Skip to p. 7 http://www.commerce.senate.gov/public/_cache/files/44f7c802-4036-48f0-9bb2-262172a396f4/31C5D5D81BBA11614012742C05C75CED.hon-jonathan-adelstein-testimony.pdf ) Here are some very important cases regarding significant gap:

a) The U.S. Court of Appeals for the Third Circuit in APT v. Penn Township.  found (skip to p. 18):  http://www2.ca3.uscourts.gov/opinarch/983519.txt
First, the provider must show that its facility will fill an existing significant gap in the ability of remote users to access the national telephone network.  In this context, the relevant gap, if any, is a gap in the service available to remote users.  Not all gaps in a particular provider’s service will involve a gap in the service available to remote users.  The provider’s showing on this issue will thus have to include evidence that the area the new facility will serve is not already served by another provider.
Second, the provider applicant must also show that the manner in which it proposes to fill the significant gap in service is the least intrusive on the values that the denial sought to serve.  This will require a showing that a good faith effort has been made to identify and evaluate less intrusive alternatives, e.g., that the provider has considered less sensitive sites, alternative system designs, alternative tower designs, placement of antennas on existing structures, etc.
Third Circuit has used its definition of a significant gap in many decisions.  One of these decisions, Omnipoint v. Newtown (Pennsylvania), was appealed by Omnipoint to the U.S. Supreme Court.  The key objection by Omnipoint was the Third Circuit’s definition of “significant gap.”  The Supreme Court refused to hear that appeal, thereby letting the Third Circuit’s decision stand.

b) The US Court of Appeals for the Ninth Circuit found Sprint's projected coverage maps unclear in Sprint vs. Palos Verdes in defining "significant gap".   In any event, that there was a “gap,” is certainly not sufficient to show there was a “significant gap” in coverage”…In addition, the Court noted how Sprint already had existing cell towers throughout the city. It also acknowledged that public remarks and residents’ drive test results contained in the staff report “further illustrate that Sprint’s existing network was, at the very least, functional.” (Sprint vs. PV also allowed cities to regulate cell towers based on esthetics so long as there is no prohibition of providing wireless services to fill "significant gap".)  Skip to page labeled 14552 to read about "significant gap" http://cdn.ca9.uscourts.gov/datastore/opinions/2009/10/13/05-56106.pdf

c) Ninth Circuit Ct of Appeals found that in Metro PCS vs. San Francisco, 2005, found that “[t]he TCA does not assure every wireless carrier a right to seamless coverage in every area it serves,” and that the inability to cover a “a few blocks in a large city” is, as a matter of law, not a “significant gap.” While we recognize that the TCA does not guarantee wireless service providers coverage free of small “dead spots,” the existing case law amply demonstrates that “significant gap” determinations are extremely fact-specific inquiries that defy any bright-line legal rule.  http://cdn.ca9.uscourts.gov/datastore/opinions/2005/03/07/0316759.pdf

3) If a provider applies on the basis of improving existing service or increasing capacity, city does NOT have to grant access. This is not the same as "significant gap."
In this case, Verizon sought to improve existing service in the area, and not to fix any "gaps".  The fact that it already has existing service means there is no gap.  Verizon also sought to increase capacity for offloading from existing sites.  There was a 1 mile gap in 4G LTE in the area but no gaps in 3G or traditional voice.  This was not a significant gap.  Improving existing service or increasing capacity is not provided for in 1996 TCA.  Also the LTE marketing maps on Verizon's website, which showed significant existing coverage in the area, were in conflict with Verizon's propagation maps.  residents used crowdsourced data and conducted field tests which showed strong to adequate service in the area of the purported gap.  (see pp. 48-52)

Lastly, I would like to clarify that I am not a lawyer (I have a BS ChE/BioE), but I am providing this info. because I think it would be helpful in your cell tower fights.  Below is our hearing where city ruled against Verizon.  I would like to make a correction though - in the hearing, I say that 4G LTE is not covered by the TCA because of FCC ruling 07-53 - that is incorrect.  At the time, I was unaware of the March 2015 FCC ruling that made 4G LTE applicable under the TCA.

2:17 - Hearing begins
2:27-2:54 - Vz Atty Paul Albritton talks
2:55-4:28 - Residents present their testimony (no significant gap, not the least intrusive site, aesthetics, zoning code)
4:28 - Vz Atty rebuts what Residents had to say
4:45 - City Council rejects Verizon 

P.S.  If you haven't done so, please sign our petition for 1500 ft setback of cell towers to schools.  Thanks!

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