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Home My WebLink About2011-10-18 Planning Board Supplemental Materials (2) MF.H ARKUTCHINS CRE ONSULTING ADIOFREQUENCY NGINEER .MH. POB6418B,V05302-6418USA WWWARKUTCHINSTELOX RATTLEBOROERMONT 802•258•3000M802•258•2500FAX OBILE 802•258•4500O FFICE September 30, 2011 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 Modifica- tion of Wireless Facility at 203 Turnpike 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 provide ad- vanced wireless broadband services for which is licensed by the Federal Communications Commission ("FCC"). Before presenting my specific findings, it may benefit the Planning Board ("Board"), and anyone new to such applications, to have a general overview regarding personal wireless facility applications. (As you know, I reviewed a similar applications by AT&T earlier this month.) Placement of wireless facilities is sometimes complex and difficult, as it is neces- sary to balance numerous interests, including federal requirements - namely, provisions of the Telecommunications Act of 1996 ("TCA") - which affect how the Board must act. Al- though some providers might feel the TCA entitles them to construct facilities, the Town should not labor under such an assumption. The relevant language states 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 1 wireless service facilities." This would appear to provide the Town a broad grant of au- thority; however, two exceptions in Section 704 are pertinent. modification First, the Town's "regulation of the placement, construction, and [Emphasis added] of personal wireless service facilities...shall not prohibit or have the effect of prohi- 2 biting the provision of personal wireless services." 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. 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). 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- 3 tions] Commission's regulations concerning such emissions." 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. I have the following detailed observations: 1. This application is fairly typical of recent proposals involving capacity expansion and/or addition of services for a provider that has an established network. It might seem rea- sonable to question the need for any antenna modifications if Metro PCS and other providers already have service. Notably, Metro PCS is licensed by the FCC to provide services involving spectrum for both voice and data. The TCA statement that local “regulation…shall not prohibit or have the effect of prohibiting the provision of personal 4 s wireless service” (emphasis added) means Metro PCS is entitled to utilize licensed spectrum without regard to how well other providers may be performing. This is due to the underlying basis for the TCA that encourages service competition, a position un- derscored in 2009 when the FCC stated that, “We [find] that where a State or local government denies a personal wireless service facility siting application solely because that service is available from another provid- er, such a denial violates Section 332(c)(7)(B)(i)(II). By clarifying the statute in this manner, we recognize Congress’ dual interests in promoting the rapid and ubiquitous deployment of advanced, innovative, and competitive services, and in preserving the substantial area of authority that Congress reserved to State and local governments to ensure that personal wireless service facility siting occurs in a manner consistent 5 with each community’s values.” 6 Specifically, Metro PCS seeks to add LTE (Long-Term Evolution) services, enabling advanced broadband capability at data speeds competitive with cable/wireline services. 2. Applicant submissions included site plan, coverage maps, and RF exposure study. The proposal is to change the existing three antennas to add LTE services, along with associated ground-mounted equipment, at the facility. According to the site plan, the new antennas will remain at the same level, with tops of the antennas at 57’ (feet) Above Ground Level (“AGL”), which will not increase the 60' AGL height of the chimney on which they are mounted. 3. The coverage maps compare town-wide coverage with and without activation of anten- nas at this site. The coverage footprint is substantially unchanged, but the antenna type being proposed will enable the addition of LTE service. The location and distance of the neighboring sites rule out their use to provide LTE coverage in the vicinity of the Turnpike Street facility, which justifies the proposed change. 3 47 U.S.C. § 332(c)(7)(B)(iv). 4 47 U.S.C. § 332(c)(7)(B)Limitations:(i)(II). 5 FCC WT Docket No. 08-165, “Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review, etc.”, ¶71, 11/18/09 6 Long Term Evolution, associated with 4th-generation (4G) services, will provide greater data capability. Town of North Andover, MA - MetroPCS 203 Turnpike Page 2 9/30/11 4. As noted in my previous reports, FCC Rules and Regulations address RF interference, primarily between licensees. Interference is unlikely beyond the calculated blanketing zone which is just a few feet for the power levels anticipated, although it is impossible to state with certainty that there will never be interference to nearby electronic equip- ment. Nonetheless, the Town’s authority to regulate interference was effectively preempted by the refusal of the U. S. Supreme Court in 2000 to hear the Freeman 7 case. 5. In addition, licensees must comply with FCC RF radiation exposure requirements for the general population, as well as for employees and contractors who have access to 8 the antennas. Analysis by Sitesafe, Inc. demonstrates compliance with FCC guide- lines regarding Maximum Permissible Exposure (“MPE”) before the proposed change. Because of the types of emitters, the site is not already close enough to FCC MPE that the changes would result in a non-compliant site. Nonetheless, the "gold standard" would be a post-construction site survey, and which has been employed at other sites in the Town to demonstrate compliance. Since MPE could be exceeded directly in front, and within a few feet, of Metro PCS antennas, accessibility is the key to MPE compliance. Restrictive measures such as signage and locked access continue to be necessary, and access was restricted at the time of the survey. Beyond addressing accessibility, the Board cannot regulate antenna placement based on “environmental” or health concerns, although it can seek demonstration of compliance using guidelines of the FCC Office of Engineering Technology Bulletin 65. 6. I would like to review my conclusions: a.) Metro PCS has shown the need to provide LTE coverage for advanced wireless broadband services, b.) Metro PCS neighboring facilities are unable to provide coverage, c.) Metro PCS can utilize the existing facility by changing three antennas, and d.) Metro PCS has demonstrated that it will comply with FCC RF exposure guide- lines. Please let me know if you have any questions or need additional information. Sincerely, [ORIGINAL SIGNED] Mark F. Hutchins 7 Freeman, et al., v. Burlington Broadcasters, Inc. et al., Petition for Writ of Certiorari to the U. S. Court of Appeals for the Second Circuit; denied October 2, 2000. 8 Site compliance report by Brian Doehnert of Sitesafe, Inc., 9/08/11. Town of North Andover, MA - MetroPCS 203 Turnpike Page 3 9/30/11 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 s 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 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 Ðpersonal wireless servicesÑ means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services; (ii) the term Ðpersonal wireless service facilitiesÑ means facilities for the provision of personal wireless services; and (iii) the term Ðunlicensed wireless serviceÑ 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)).