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Home My WebLink About2011-12-06 Planning Board Supplemental Materials (7) MF.H ARKUTCHINS CRE ONSULTING ADIOFREQUENCY NGINEER .MH. POB6418B,V05302-6418USA WWWARKUTCHINSTELOX RATTLEBOROERMONT 802•258•3000M802•258•2500FAX OBILE 802•258•4500O FFICE December 2, 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 Sprint Spectrum LP (Sprint) Application for Modification of Wireless Fa- cility at 5 Boston Hill Dear Judy: I have reviewed technical submissions for the above-referenced application. In summary, the proposal by Sprint Spectrum (“Sprint”) will enable it to continue to provide advanced wireless broadband services for which is licensed by the Federal Communications Com- mission ("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 application by AT&T at this location last September. Placement of wireless facilities is sometimes complex and difficult, as it is necessary to balance numerous interests, including federal requirements - namely, provi- sions of the Telecommunications Act of 1996 ("TCA") - which affect how the Board must act. Although some providers might feel the TCA entitles them to construct or modify facili- ties, 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 modifica- 1 tion of personal wireless service facilities." This would appear to provide the Town a broad grant of authority; 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 additional or changed antennas if Sprint and other providers already have service. Notably, Sprint is licensed by the FCC to provide ser- vices involving broadband spectrum; some of its spectrum is part of what used to be the Nextel iDen network. Sprint has been consolidating and making hardware up- grades to better use its licensed spectrum. The TCA statement that local “regula- tion…shall not prohibit or have the effect of prohibiting the provision of personal wire- 4 s less service” (emphasis added) means Sprint is entitled to utilize all of its spectrum blocks 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 unders- cored 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.” 2. Applicant submissions included site plan and engineering report. Coverage maps were not provided, but are not necessary for this type of modification involving antenna changes, since the signal "footprint" will be similar. More important, we can assume that this facility is already needed to fill a substantial coverage gap and that this cannot be achieved with neighboring sites. The applicant representative indicated there will be an RF exposure study, although it is safe to assume that the antenna changes at this height will not significantly alter the levels on the ground and that the site will remain in compliance. The proposal is to remove six existing antennas and replace these with seven new antennas, along with associated equipment changes. According to the site plan, the new antennas will be mounted with no increase in overall structure height. 3. As noted in my previous reports, FCC Rules and Regulations address RF interference, primarily between licensees. Interference is unlikely beyond the calculated blanketing 3 47 U.S.C. § 332(c)(7)(B)(iv). 4 47 U.S.C. § 332(c)(7)(B)Limitations:(i)(II). The relevant language of TCA Section 704 is attached as Ap- pendix 1. 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 Town of North Andover, MA - Sprint 5 Boston Hill Page 2 12/02/11 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 6 case. 4. 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 the antennas. As previously noted, I have not yet received the exposure compliance 7 study. However, analysis provided by SAI Communications for AT&T demonstrated likely compliance with FCC guidelines regarding Maximum Permissible Exposure (“MPE”) at this site. Although it did not address collocation of other emitters and their cumulative impact, it does show the extremely low levels relative to people on the ground. Because of the types of emitters, this site is probably not already close enough to FCC MPE that the changes would result in a non-compliant site. Since MPE could be exceeded directly in front, and within a few feet, of Sprint antennas, accessi- bility is the key to MPE compliance. Therefore, restrictive measures such as signage, door locks and/or fencing continue to be necessary. Beyond addressing accessibility, the Board cannot regulate placement of the new antennas based on “environmental” or health concerns, although it can seek demonstration of compliance using guidelines of the FCC Office of Engineering Technology Bulletin 65. 5. I would like to review my conclusions: a.) Sprint has shown the need to change antennas to continue to meet its coverage needs, b.) Sprint neighboring facilities are unable to provide coverage of this area, c.) Sprint can utilize the existing Boston Hill facility with the proposed antenna changes, d.) Sprint will not increase the structure height with the proposed mounting, and e.) Sprint should be required to demonstrate that it will comply with FCC RF expo- sure guidelines. Please let me know if you have any questions or need additional information. Sincerely, [ORIGINAL SIGNED] Mark F. Hutchins 6 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. 7 Maximum Permissible Exposure Study by SAI Communications, 6/06/11. Town of North Andover, MA - Sprint 5 Boston Hill Page 3 12/02/11 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)).