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Home My WebLink About2012-07-17 Planning Board Supplemental Materials (40)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 July 10, 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 Sprint Spectrum L.P. - Application for Modification of Wireless Facility at 723 Osgood Street Dear Judy: I have reviewed technical submissions for the above-referenced application. In summary, the proposal by Sprint Spectrum L.P. ("Sprint") will enable it to continue providing, and im- prove, advanced wireless broadband services for which it is licensed by the Federal Com- munications Commission ("FCC"). The proposed changes are with respect to antennas mounted on an existing tower, and are arguably minor. As you know from my comments in reviews of the past couple of years. it is necessary for the Planning Board ("Board") to balance numerous interests, including federal require- ments - namely, provisions 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 modifica- tion of personal wireless 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, construction, and modification [Emphasis added] of personal wireless service facilities...shall not prohibit or have the effect of prohib- iting the provision of personal wireless services."2 Case law that has evolved regarding TCA “prohibition” language continues to show that the applicant is entitled to place or mod- ify a personal wireless facility in the Town if it demonstrates that there is a “significant gap” in coverage and that no feasible alternatives exist. In this case, the proposal is for an ar- guably minor change in the facility - slightly different antennas mounted with several other antenna arrays on an existing guyed tower - previously approved by the Town, and permit approval appears consistent with requirements and intent of the Act relating to the provi- sion of personal wireless services. The need for facilities at this location has already been 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 - Sprint-723 Osgood St. Page 2 7/10/12 established, as outlined in my 2011 review of modifications sought at the tower by New Cingular Wireless ("AT&T Mobility").3 While AT&T Mobility and Sprint provide competing wireless services, their requirements, spectrum use and coverage are similar, and AT&T Mobility required an upgrade to enable better wireless broadband and other services. In addition, Sprint provided an engineering report for this application stating the need for the modifications to better meet customer needs and improve its network capacity; lack of ca- pacity can be expected to result in coverage gaps.4 In addition, before- and after- modification coverage are shown in mapping submitted by the applicant.5 As can be seen, the proposed Sprint modification results in coverage improvement consistent with my ear- lier findings about the AT&T Mobility proposal. 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- quency emissions to the extent that such facilities comply with the [Federal Communica- tions] Commission's regulations concerning such emissions."6 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. My earlier report for this site agreed with AT&T Mobility submissions regarding compliance. For the current proposal, Sprint submitted a site compliance report by EBI Consulting.7 Note that emissions from collocation of AT&T Mobility (and other existing) antennas were also con- sidered in addition to Sprint emissions, as is appropriate, and a determination made of substantial exposure compliance with FCC guidelines. Furthermore, actual testing per- formed in regard to the 2010 T-Mobile renewal application at this site confirmed extremely low exposure from all providers.8 Provisions need to be continued to make the tower in- accessible to the general public, and existing signage and fencing should be adequate. A final point involves physical changes to the support structure. As shown in Exhibit 5, Photo Location 2 indicates the likely appearance of a new canister at the top of the pole to house the new antennas. This includes new pipe mounts inside the canister, but overall structure height will remain unchanged at 100 feet above ground level. Please let me know if you have any questions or need additional information. Sincerely, [ORIGINAL SIGNED] Mark F. Hutchins 3 Mark F. Hutchins to Judy Tymon re: New Cingular Wireless Application; 9/5/11. 4 RF Engineering Affidavit of RF Engineer Ryan Monte de Ramos; 5/29/12. 5 Existing and Propose(d) Indoor Reliable Coverage for BS54XC860; submitted as Exhibit 8. 6 47 U.S.C. § 332(c)(7)(B)(iv). 7 Site Compliance Report for Site BS54XC860 by EBI Consulting, Burlington, MA; 5/28/12. 8 RF exposure study conducted by Donald L. Haes, Jr., Ph.D., CHP, dated 12/29/09. 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)).