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Home My WebLink About2012-03-20 Planning Board Supplemental Materials (106)M ARK F. H UTCHINS CONSULTING RADIOFREQUENCY ENGINEER WWW.MARKHUTCHINS.TEL PO BOX 6418 BRATTLEBORO, VERMONT 05302-6418 USA 802 • 258 • 3000 MOBILE 802 • 258 • 2500 FAX 802 • 258 • 4500 OFFICE March 16, 2012 Via email & USPS: jtymon@townofnorthandover.com Judy Tymon, AICP Town of North Andover Planning Dept. 1600 Osgood Street North Andover, MA 01845 REF: Review of Metro PCS, LLC Massachusetts (Metro PCS) Application for Renewal of Wireless Facility at 70 Elm Street Dear Judy: I have reviewed technical submissions for the above-referenced application. In summary, the proposal by Metro PCS, LLC Massachusetts ("Metro PCS") will enable it to continue providing advanced wireless broadband services for which it is licensed by the Federal Communications Commission ("FCC") As you know from my comments in recent reviews. it is necessary for the Planning Board ("Board") to balance numerous interests, including federal requirements - namely, provi- sions of the Telecommunications Act of 1996 ("TCA") - which affect how the Board must act. The TCA remains as the governing federal legislation, stating that "nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wire- less service facilities."1 While this appears to provide the Town a broad grant of authority, two exceptions in Section 704 remain pertinent in the case of this application. First, the Town's "regulation of the placement [Emphasis added], construction, and modi- fication of personal wireless service facilities...shall not prohibit or have the effect of prohib- iting the provision of personal wireless services."2 You will find that the case law that has evolved regarding TCA “prohibition” language shows that the applicant is entitled to place or modify a personal wireless facility in the Town if it demonstrates that there is a “signifi- cant gap” in coverage and that no feasible alternatives exist. In this case, there is no change proposed in the facility as previously approved by the Town, and renewal of the earlier permit appears consistent with requirements and intent of the Act relating to the provision of personal wireless services. Second, the Town may not "...regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio fre- 1 Section 704 of Telecommunications Act of 1996: Text from 47 U.S.C. § 332(c)(7), attached as Appendix 1. 2 47 U.S.C. § 332(c)(7)(B)(i)(II). Town of North Andover, MA - MetroPCS 70 Elm St. Page 2 3/16/12 quency emissions to the extent that such facilities comply with the [Federal Communica- tions] Commission's regulations concerning such emissions."3 The environmental effects include the impact of human exposure to radiofrequency emissions. Once FCC guideline compliance has been ascertained, under the TCA your inquiry is at an end since you can- not otherwise regulate the placement of the facility on “environmental” grounds. Any fur- ther evaluation of the science, including health impacts, is ruled out by the Act. As you know, there has been concern about antenna placement expressed by some resi- dents in the past. It is important for the Board to differentiate between any safety concerns and compliance with FCC guidelines regarding exposure from antennas placed at this fa- cility. My earlier report substantially agreed with MetroPCS submissions regarding compli- ance that were submitted in support of the original application. For the renewal, MetroPCS submitted a site compliance report by SiteSafe,4 based on a visit that included measure- ments. Note that emissions from collocation of T-Mobile antennas were also considered, as is appropriate, and a determination made of substantial exposure compliance at gen- eral-public access points. It was noted in the report's Site Access Procedures that access was "unlocked/unrestricted at the time of the site visit; however, it also noted that "RF Ad- visory signage was posted at all site access points." 5 I remain concerned that provisions be made to keep any contractor working outside the steeple and directly in front of the an- tennas away when either provider has any transmitting antennas activated. Nonetheless, I feel the report is quite complete in spelling out the requirements regarding compliance, and that the measured levels were low and in well within compliance with FCC guidelines. Please let me know if you have any questions or need additional information. Sincerely, [ORIGINAL SIGNED] Mark F. Hutchins 3 47 U.S.C. § 332(c)(7)(B)(iv). 4 Site Compliance Report for Site BOC0380C by SiteSafe, Arlington, VA; 11/30/11. 5 Ibid. Site Audit, Section 6. APPENDIX 1 Section 704 of Telecommunications Act of 1996: Text from 47 U.S.C. § 332(c)(7) (7) PRESERVATION OF LOCAL ZONING AUTHORITY. (A) GENERAL AUTHORITY. Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities. (B) LIMITATIONS (i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof (I) shall not unreasonably discriminate among providers of functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services. (ii) A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request. (iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record. (iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions. (v) Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief. (C) DEFINITIONS.-- For purposes of this paragraph (i) the term “personal wireless services” means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services; (ii) the term “personal wireless service facilities” means facilities for the provision of personal wireless services; and (iii) the term “unlicensed wireless service” means the offering of telecommunications services using duly authorized devices which do not require individual licenses, but does not mean the provision of direct-to-home satellite services (as defined in section 303(v)).