UPDATES

 WPRA Requests Monitoring of Radiation from Cell Antenna - September 2, 2010

In response to a request by T-Mobile to locate a new cell phone antenna adjacent to 450 Avenue 64 WPRA sent the following letter to the Planning Department:

Thank you for recognizing your oversight in not sending the notice for the subject antenna to the WPRA. We appreciate your extending the comment period to allow us to comment on the proposed installation.

Every added installation of this sort adds to the visual blight on our community and we need to ensure that each one is necessary. WPRA believes that the visual impact of this installation is minor and we trust that it will improve services to our members as is stated in the application.

We are more concerned about the possible impact on the health of our members caused by added radiation near their homes. Our understanding of the current state of research on the long term effects of this kind of radiation is that the impact on the health of persons is unclear at best. We understand that the FCC has established radiation levels that it believes are not harmful, and that proposed installations which comply with the FCC regulations may not be denied for reasons of possible injury to persons who are subjected to this radiation. Radiation which exceeds the FCC guidelines may indeed be harmful to persons and we need to ensure that our members are not subjected to excessive radiation.

Therefore we request that the radiation emanating from this antenna be monitored periodically , and over a long enough continuous time each period to ensure that maximum and minimum amounts of radiation are measured. We further request that the results of this monitoring be disseminated to residents in the area and to the WPRA.

PERSPECTIVE  •  Nov. 12, 2009

9th Circuit Deals Blow to Wireless

By Michael Shonafelt

Anyone trying to carry on a cell phone conversation while driving through the city of Palos Verdes Estates - or any other hilly community like it - knows that coverage often is less than optimum. The reason is simple: wireless telephones rely on line-of-sight radio wave technology and hills tend to get in the way. The solution also is simple: install more antennas to "beam" signals around troublesome topography.

Don't expect major improvement any time soon.

The problem is that few people, especially those who live in well-heeled communities that pride themselves on the aesthetic quality of their neighborhoods - such as the city of Palos Verdes Estates - like to have their neighborhoods bristling with wireless antenna facilities, even if they are less than satisfied with their cell phone reception.

On Oct. 14, 2009, the 9th Circuit handed a major coup to the aesthetes and dealt a major blow to the wireless industry. In a dramatic about-face from its reasoning in an earlier case, Sprint PCS v. La Cañada Flintridge, 435 F.3d 993 (9th Cir. 2006), the court held that local governments have discretionary authority to bar wireless facilities from the public rights-of-way on aesthetic grounds.

The decision, Sprint PCS Assets LLC v. City of Palos Verdes Estates (9th Cir. 2009) 583 F.3d 716, upsets a long line of state case law declaring that an age-old state statute - Public Utilities Code Section 7901 - reserves the public rights-of-way as an area of statewide - not municipal - concern for telephone facilities, leaving to local governments only the ability to regulate the time, place and manner in which telephone corporations can access the state's roads and highways to install their facilities.

For years, wireless telecommunications companies relied on Section 7901 to avoid the burdensome process of obtaining discretionary land use approvals - such as conditional use permits - to deploy their networks. Conditional use permits and other such discretionary approvals can be time-consuming and costly; they often require environmental review under the California Environmental Quality Act and, after expenditure of significant resources, may result in a final permit denial, resulting in gaps in network coverage.

Section 7901 is the great-grandchild of a much older statute promulgated by a fledgling State Legislature to facilitate California's full participation in the advances of the Telegraph Era. Its current permutation - adapted for the telephone in 1905 - allows telephone corporations to install their fixtures and lines "in such manner and at such points as not to incommode the public use of the road or highway...." A follow-up statute, Section 7901.1, restricts local authority to regulating only the "time, place and manner in which roads...are accessed." The courts long have interpreted the two statutes to mean that cities cannot rely on their usual slate of police powers (such as aesthetic considerations) to deny permits for the installation of telephone facilities in their streets and highways. Indeed, the legislature that enacted the precursor to Section 7901 knew quite well that the state could never benefit from advances in communications technology if each municipality could hold up the development of communications infrastructure in its jurisdiction on the basis of local aesthetic standards and sensibilities.

Palos Verdes Estates was one of the first cases applying Section 7901 to wireless telecommunications facilities. On that note, the city of Palos Verdes Estates was a perfect proving ground for determining the metes and bounds of local police power over wireless facilities under the statute. Indeed, it is often quipped that, in the city of Palos Verdes Estates, a homeowner cannot even paint his or her front door without the city's fiat. The remark is not far from the truth. Palos Verdes Estates was one of the first planned communities in the State, and virtually every external home improvement must pass the scrutiny of a body called the "Art Jury," an entity created under the original, pre-WWI-era Master Plan, to maintain a Mediterranean aesthetic throughout the city's boundaries. The city still vests approval authority in the Art Jury for aesthetic issues.

The facts of the case are straightforward. Sprint PCS sought to upgrade an aging network it acquired in the city by installing panel antennas to existing Edison poles at certain points in the neighborhood streets. Sprint submitted permit applications to the city planning director to allow it to construct the facilities, pursuant to the city's wireless ordinance. The city planning director balked at two of the applications, noting that the installation of one panel antenna would "disrupt the residential ambiance of the neighborhood" and the other would "detract from the natural beauty" of the city's gateway. Sprint's attorneys cited Section 7901 and argued that the city could not base a denial of its permits on aesthetic grounds. When the city council affirmed the denials of the planning director, Sprint went to court.

The District Court Judge, Alicemarie Stotler, agreed with Sprint that Section 7901 applied not only to traditional wire-line telephone facilities but also to wireless antennas. She issued an order overturning the city's denials of Sprint's permits and declared the Palos Verdes Estates wireless ordinance void for purporting to vest the planning director with authority to deny right-of-way permits on aesthetic grounds. Judge Stotler also held that aesthetics justifications could not constitute "substantial evidence" under the federal Telecommunications Act's substantial evidence requirement.

As the city appealed the decision, the 9th Circuit was considering the same issues in another appeal by Sprint. That case arose in another affluent, but topographically challenged, community - the city of La Cañada Flintridge. In Sprint PCS Assets v. La Cañada Flintridge, the 9th Circuit unequivocally declared that Section 7901 gave Sprint the right to enter the streets of a city without being subject to aesthetic controls. The court's reasoning was clear: "Section 7901.1 only gives cities the authority to regulate the manner in which roads 'are accessed,' not the authority to regulate the manner in which telephone companies affect the road's appearance." Yet, shortly after the 9th Circuit's decision, the court retreated, issuing another decision effectively "depublishing" its reasoning in the La Cañada case, as it sought guidance from the California Supreme Court on this unique question of state law. The California Supreme Court ultimately declined to weigh in on the matter.

With the recent Palos Verdes Estates decision, the court's about-face is now complete. Yet, in a decision that reads more like a post-hoc rationalization for the court's change of heart, the court does not adequately explain how it can read so expansive an interpretation of local authority into Section 7901 - a statute clearly intended to limit local control to preventing the obstruction of ordinary travel on the roads. The court's reasoning means cities and counties now can deny permit applications for the public rights-of-way on the basis of inherently subjective and open-ended considerations (the old proverb rings relevant here: "beauty is in the eye of the beholder"). It opens the statute up to the full slate of municipal police powers, a result that ruptures a hundred-year-long line of state law cases that establishes clear limits on municipal authority over telephone corporations in the public rights-of-way.

In short, Sprint PCS Assets v. City of Palos Verdes Estates renders Section 7901 a dead letter. In more utilitarian terms, it represents a major blow to the wireless industry at a critical time in a slumping economy when wireless telecommunications companies are intent on rolling out new 4-G technologies to their customer base. But the industry is not sitting back: Sprint has filed a petition for panel rehearing, and other representatives of the wireless industry have filed amicus briefs in support of that petition. The industry now waits and watches.

Michael W. Shonafelt is a land use lawyer and shareholder at Parker Milliken in Los Angeles. He also serves as a member of the Board of the California Wireless Association. He represented Sprint PCS in the initial proceedings before the city of Palos Verdes Estates and the city of La Cañada Flintridge and drafted the briefs in the trial and appellate court litigation of those cases.

© 2009 Daily Journal Corporation. All rights reserved.

Cornell H. Winston

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First New Cell Antenna Installed, Oct 15, 2009

Alpine and Oak Knoll is the location of the first cellular antenna to be installed since the new city ordinances were passed and the moratorium on construction was lifted. The antenna is mounted on one of the new concrete light standards and, according to City Engineer Dan Rix, is the style that will be used in future installations as the cellular carriers fill in gaps in their coverage.

The new antenna can be seen in the photographs below extending above the point where the street light is attached to the pole.

Please send your comments on the aesthetics of the antenna to Mr. Rix (drix@cityofpasadena.net) with a copy to Bob Holmes (holmes@wpra.net). The city will start processing an application for a similar antenna at Ave 64 and Cheviotdale within the next few weeks.
 

Cell Phone Radiation Studies, Oct 15, 2009

Several citizens have sent me (Bob Holmes) references on the dangers of radiation. The references have focused on the dangers from using cell phones. I am still looking for information on the dangers from cell towers. The Telecommunications Act of 1996 forbids communities from taking the environmental effects of Radio Frequency radiation into consideration when citing cell towers which may account for the lack of discussion on the subject.

Since cell phones increase their power output when there is a weak signal (fewer bars), having a nearby antenna may reduce the danger of using your cell phone due to reduced power output from your phone. I have no data on the tradeoff of receiving more radiation from the tower. My take on the studies is that you should not have a cell phone in close proximity to your body and always use a wired headset. Wireless (Bluetooth) headsets reduce the strength of radiation, but it is constant and may well cause a net increase in the amount of radiation delivered to your brain.

There is a growing body of data on the dangers of using cell phones. The Los Angeles Times published an article on October 14, 2009 containing some research on use of cell phones.
http://www.latimes.com/news/nationworld/nation/la-sci-cell-phones14-2009oct14,0,3949576.story

Science News published an article on this subject in September.
http://www.sciencenews.org/view/generic/id/47430/title/Cell_phones_Precautions_recommended

Watch a very enlightening Senate Hearing on September 14, 2009
http://www.youtube.com./cellphonesandhealth#p/c/B46DC8A95D01D39F/0/pB4hdjwRgUM

You can check the power output of your cell phone here:
http://www.ewg.org/cellphoneradiation/Get-a-Safer-Phone?allavailable=1

Please keep the flow of information coming. We value your input.
Bob Holmes 
holmes@wpra.net

 
U-Verse Box Location Update, June 25, 2009
Permits have been issued to install U-Verse boxes at the following locations as of June 12, 2009.

• 1396 Forest
• 52 S. San Gabriel
• 525 E California
• 552 S. Euclid
• 35 S. Altadena
• Mar Vista Ave - N. of Colorado
• 2156 E. Colorado
• 90 S. Chester
• 9 N. Meredith
• 575 E. Walnut
• 223 E. Glenarm
• 116 S. Oak Knoll
• 723 E California
• 266 S. Madison

The U-Verse box shown below is the one on Mar Vista Ave. north of Colorado. The picture was taken from in front of the SAI box associated with it.

Get Involved
For more information and to get involved, please contact committee chair Robert Holmes at holmes@wpra.net.