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...local governments can regulate wireless towers and poles as long as they don't actually prohibit wireless service within their borders or create a 'significant gap in service coverage'

New Cell Sites in Jeopardy?

Monday, September 15, 2008

Last week there was an action in the Ninth U.S. Circuit Court of Appeals in San Francisco that could have huge implications for any company that needs to construct new cell sites, whether for an existing system or Clearwire's WiMAX system, the cable operators who own wireless spectrum but have not built their systems and, in fact, virtually anyone who needs to build out more tower sites.

What happened was that on September 11, this court voted 11-0 to uphold San Diego County' s limits on placement, size and design of towers and poles used for providing cell phone service and wireless Internet connections. It also voted by unanimously to discard a standard that the court itself had established in 2001 that barred local governments from adopting any restrictions that "may have the effect of prohibiting wireless services." This action was based on the fact that, according to the court, it misinterpreted federal law when it issued the earlier ruling, and that local governments can regulate wireless towers and poles as long as they don't actually prohibit wireless service within their borders or create a "significant gap in service coverage" [emphasis added].

The attorneys for some of the cities and counties on the "winning" side commented that this gives them the ability to even-handedly control the environment in our neighborhoods. The ruling requires poles to be camouflaged in residential areas and to have set height limits, and requires companies to submit a visual impact analysis and allow a zoning board to deny an application if it is inconsistent with the character of the community.

It is unclear if this new ruling will be appealed or if the FCC will intercede in the finding, but this could make the placement of cell sites even more problematic, more expensive and take longer. One positive aspect of this, perhaps, would be that network operators might establish more cell site sharing and in some areas, even network sharing.

At a time when almost every network in the country, including Clearwire, the cable companies and others that now own AWS and/or 700-MHz spectrum, could be adversely affected as they set about building out their systems. And I have to wonder about the phrase "that local governments can regulate wireless towers and poles as long as they don't actually prohibit wireless service within their borders or create a 'significant gap in service coverage'" [emphasis added]. Does this mean that if AT&T, for example, has a tower site that covers an area that is approaching customer saturation and wants to build more sites in order to increase capacity, it will be thwarted because it already provides "coverage" in the area? (Building more sites is one of the few ways in which capacity of a network can be increased.)

What will happen to companies such as Clearwire that will need more sites in a given city or county to provide adequate coverage because they are operating at 2500 MHz instead of 850 or 1900 MHz? What will happen to the value of the AWS 2/3 spectrum that is supposed to be auctioned next year and requires coverage of 95% of the U.S. population by year ten and also requires the winner to provide free 786-Kbps Internet access? I had originally projected the ten-year cost of that network to be in the $40-43 billion range, including the cost of the spectrum. I have to believe that if these new rulings remain on the books, two things will happen. First, the value of the spectrum will decrease because of the issue of building out sites. Second, the time involved in building the sites will increase as will the cost. It may be that these rulings could have such an adverse effect on this spectrum that no one will show up to bid on it.

I live in a city that makes it really tough to plan and develop new cell sites. The one that went in on a hillside above me a couple of years ago took more than three years from selecting the location to final approvals and construction. There are two communities near me that have made it almost impossible to install wireless services-Montecito, home of the rich and famous, and Hope Ranch, another wealthy community that does not want any towers at all in their area. Of course, the residents complain about their cell phone coverage all the time. Perhaps things in Hope Ranch will change now that Craig McCaw and his family have a home there, but from my perspective, these rulings enable areas like these to continue stonewalling the wireless companies.

My experience is that most of the wireless companies are already suggesting camouflaged towers and poles, and the recent additions in our community are difficult to spot even if you know where to look. Of course, the cost of these "hidden towers" is higher than simply building a 200-foot tower and sticking antennas on it. Those who live in California especially have probably never driven from Cincinnati to Dayton, Ohio along the Interstate. Once you crest the hill and head down into Dayton, you see many cell sites, all with 200-foot towers (actually 199 feet to meet requirements). Some are in residential areas, but they were built a long time ago and I imagine even in Dayton new towers have to not look like towers.

These rulings might prompt the use of more microcells that can be mounted on existing poles, and even femtocells that are located in our homes and offices to extend wide-area coverage indoors. There is a company that, while still in virtual stealth mode, has been working with the wireless industry, cities and counties to help solve some of the tower placement issues among other things and perhaps it will be able to help the wireless companies and cities and counties to come to some type of agreement.

I also have to wonder what impact these rulings will have on the new (renewed) push by the FCC to put the 700-MHz D Block back on the auction block. You might remember that this block was supposed to have been auctioned to a single network operator that would then work with the public safety community and develop a network that would use commercial technologies and provide good coverage for the first responder community. They, too, will need a lot of cell sites across the country to provide the type of coverage first responders need.

I can appreciate the cities' and counties' desires to keep their skylines from becoming cluttered with towers, even though their power and telephone poles are pretty unsightly. But their citizens are demanding better service, faster connections and fewer dropped calls. At the recent CTIA show, it was announced that the United States has passed the 85% penetration mark-in other words, 85% of our population is using wireless devices on wide-area networks. This number will grow to more than 300% as we begin carrying more than one device per person and wireless is built into many different types of consumer appliances. Add to this that a growing percentage of 18-25 year olds do not own a wired phone any longer, choosing instead to use their wireless phones as their only contact point, and it is easy to see that the demand for towers will increase with each passing year.

It is not clear what the wireless industry's response will be to these rulings but for now, the cities and counties feel like they have won several major battles and that they can be heavy-handed with the wireless industry-even at the expense of poor coverage or dropped calls and data sessions. The industry has not done a very good job of educating people about the relationship between towers and cell phone services; this is usually done only during public planning meetings and then only to the small group of people who show up, mostly to protest the building of a new tower near them. My own experience with many of these protesters is that they show up to protest most changes, believing that they will "destroy their way of life," and at least here, many of them are older, retired and have never owned or used a cell phone.

I have dusted off a white paper I wrote several years ago called "Why We Need More Cell Towers" and I am going to update it based on these new rulings. I hope it might have at least some impact on what will happen next because I suspect the cities and counties are really going to be flexing their muscles from here on out.

Andrew M. Seybold

COMMENTS: This is an archived post. Commenting is no longer available.

Scott Goldman - 09/15/2008 19:53:11

Well said, Andy. It's always been my experience that those who make the most noise protesting new development (cell sites, shopping centers or housing) are generally the first ones on line to take advantage of the improvements when completed.

There are a variety of reasons why additional cell sites are needed now, as you've stated, and more will certainly come. For example, the generation of wireless users who no longer have a landline (I'm one of them - see my blog at for details) will, when available, prefer to tether their laptops (most of them don't buy desktop computers anymore, either) to a wireless phone instead of having a cable modem or DSL line. That will, in turn, use more spectrum, adding more load to the system and thus generate the need for additional sites. Others will arise as various household functions are designed to alert users or be activated via wireless devices (locks, temperature controls, security systems, etc.).

So the question remains how to get community cooperation while accomplishing the goals of the wireless industry. To that end, maybe some of the very expensive TV advertising dollars that CTIA is spending right now on "image" ads that are, in my humble opinion, accomplishing absolutely nothing, would be better spent on a campaign showing the variety of hidden/stealth sites and talking about people whose lives have been vastly improved - or saved - since having coverage added or enhanced near their home.

That CTIA makes so much money it can afford to spend its members money on national TV ads is subject for another discussion (and a pet peeve of mine, e.g., it's easy to be a non-profit if you spend enough money on advertising and executive salaries) but if they're going to do it there should at least be an objective in mind that will benefit the industry. This certainly would have a tangible benefit and the best part is that it will benefit the consumer, too.

Being a fellow Californian I can empathize with your frustration in seeing that site take three years to be built near your home. I also used to spend a lot of time in Cincinnati and know how totally crappy that area looks because the carriers were just out of control. There's a middle ground here somewhere and if you ever decide to start a national campaign of your own to educate the public on this matter, count me in as the first to want to help.

Peter Moncure - 09/16/2008 09:17:37

Thanks for this, Andy, but do not be fooled by the claims by government of protecting the "viewshed". To the extent that I have seen (and very personally, I might add) government itself interested in tower construction, whether for need or profit, all environmental concern and legal precedent so forcefully applied against carriers evaporates. It is all about arrogating control. Though it's pretty clear that they cannot choose placement or style of antennas to be sidemounted to a tower, they are actually infuriated when courts rule against them in the hundreds of such long-drawn-out cases!

I'd say your article was too gentle. What they are doing borders on criminal, but the courts have a bias toward local government and refuse to issue clear rulings, so they exploit the gray areas again and again. Who, upon reading your words, will be motivated to enforce upon San Francisco the cost of their decisions? Concerning Public Safety radio infrastructure, the taxpayers are getting zinged IMHO, and they'll never know.

CTIA needs to become more like AOPA (the Pilot's Association)--FAA knows that anything they do will be immediately scrutinized and works with them to develop Rules which both regulate and promote. When a local government tries to take airport land for development, AOPA sends lawyers and advocates to illustrate the value of that business. If they can get away with it, they will, that is the nature of local government. The interest of the Public in radio needs a union! Someone needs to take your ideas and financially quantify them per home. Or perhaps all carriers should simply deny service from four to six PM on occasional Fridays, but no! that would be collusion. Humph.

Daniel Callahan - 09/16/2008 12:50:55

Good points Andy. I'm OK with municipalities creating and enforcing zoning laws intended to maintain a certain level of beauty. But as has been said, the requirement to "not prohibit wireless service" is pretty broad. It would be easy to imagine a city council arguing that it allows for cell towers at one frequency, so it can ban all others.

My only somewhat tongue-in-cheek suggestion is to set up some form of "tower offsets", as is done with carbon offsets and other pollution offsets. I get to put towers in Montecito (femtocells, under those trays butlers carry around ) if I agree to plant trees, or put towers in for free in the poorer parts of Santa Barbara down the hill, etc.

Andrew Seybold - 09/16/2008 18:48:21

Thanks to you all--great comments--and I beleive that we need to do more to educate Cities, Counties, and citizens, one County in CA, five years ago were going to pass an ordinance that all cell antennas had to located below ground in order to be permitted--there really is a lot of mis-understanding and yes there is also a lot of mis-conceptions when it comes to health hazards, not only how tower sites look--something needs to be done for sure since the demand for data will continue to grow and more sites will be required not only by the incumbents but also by the new opearators.
It boggles my mind that the FCC can continue to push for AWS-2/3 network with 95% population coverage when trying to get sites approved is only gett ing harder (read more expensive in both money and time), I don't have a solution, but the CTIA should be more proactive and perhaps someone should try to educate the justice system as well as city councils and county supervisors. Once they are educated we need to make sure new elected officials are educated also.