Minutes - 2020 - City Council - 06/18/2020 - SpecialEAGLE CITY COUNCIL
SPECIAL MEETING MINUTES
June 18, 2020
1. CALL TO ORDER: Mayor Pierce calls the meeting to order at 3:00 p.m.
2. ROLL CALL: Present: BAUN, GOLD, PIKE, PITTMAN. All present. A quorum is
present.
3. PLEDGE OF ALLEGIANCE: Mayor Pierce leads the Pledge of Allegiance
4. REPORTS:
A. Mayor and Council Reports: Baun reports on putting together a working committee for
protection of farmlands. There will be a meeting on June 30, 2020 if council would like
to attend, on saving farmland. Concept plan for BLM with PPDC. Gold reports on
Library Board. Pittman reports on impact fee committee.
B. City Hall Department Supervisor Reports: None.
5. ADDITIONS, DELETIONS OR MODIFICATIONS TO THE AGENDA:
A. City Staff requests.
B. Mayor or City Council requests.
No changes are made to the agenda.
6. NEW BUSINESS:
A. ACTION ITEM: Cell Tower Presentation: Idahoans for Safe Technology will present
before the City Council about RF pulse -modulated microwave radiation hazards from cell
towers.
Hank Allen, 687 Rush Court, Eagle, Idaho, Brandon Thompson, 10113 W. Lance Drive,
Boise, Idaho, (electrical engineer) Cathy Cook, (electro-magnetic specialist), 688 N 29th
Street, Boise, Idaho, Doctor Ann Hike, 10900 W Wasdale, Boise, Idaho address the council.
Presentations given on safe technology options, and cell tower ordinance they have put
together. Discussion with the council.
B. ACTION ITEM: FEMA COVID-19 Funding Assistance: A request for the City Council
to allow the Mayor to enter into a contract with Ed Sloan to work with FEMA to get
COVID-19 relief funds for the City.
Mayor gives information about what FEMA funds might be able to do for the city and how
Mr. Sloan can offer assistance to get the most dollars possible for Eagle.
Pittman moves to direct the mayor to get more information including a potential
contract with the individual that we could review prior to accepting this. Seconded by
Pike. Discussion. ALL AYE...MOTION CARRIES.
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7. UNFINISHED BUSINESS:
A. ACTION ITEM. Update on City Initiated Application CPA-02-19: Eagle Foothills
Comprehensive Plan: Discussion on the hearing timeline for the City initiated application:
CPA-02-19 — Eagle Foothills Comprehensive Plan. (NBS) This item was last heard at the June
9,2020 meeting.
City Planner Nichoel Baird -Spencer reviews this item, highlighting changes and updates.
Baun moves to withdraw application CPA-02-19 and go forward with the existing 2017
comprehensive plan with the following amendments incorporated, include the enterprise
overlay associated with the amendment, the police and fire level of service impact fee
plan adopted, the trails master plan and do not include the West Park component. In
addition to that, I'd like to initiate a full revision of the 2017 comprehensive plan, using
a comprehensive process that utilizes or that is similar to the 2017 process that we used,
including work sessions, open houses, and public input and incorporating the economic
strategic plan identified in 2019. Seconded by Pike. Discussion. Roll call vote, Baun;
aye, Gold; nay, Pike; aye, Pittman; nay. Vote is tied, the Mayor votes aye, MOTION
CARRIES.
B. FY 2021- FY 2025 CAPITAL IMPROVEMENT PLAN WORKSHOP: Workshop on
the FY 2021-2025 Capital Improvements Planning process, review of the capital projects
request list and Draft FY 2020-2021 Capital Budget.
City Planner Nichoel Baird -Spencer reviews this item. Discussion with council about what
capital projects they feel can possibly be removed from the budget.
S. ADJOURNMENT:
Pike moves to adjourn at 4:47 pm. Seconded by Baun. ALL AYE...MOTION
CARRIES.
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There is NO NEED for additional 4G or 5G small cell facilities in our cities!
We already have safe and secure underground wired fiber and copper
broadband. See for yourself at L oa l anclNov .com. Broadband wireless
falls under Title I and it is unregulated by the 1996 Telecommunications
Act. Local City Officials have 100% control over its broadband
Infrastructure policies. The 1996 Telecommunications Act and the FCC
only regulate Basic phone and texting wireless service. —ills }111 P1
N ? > > If you have one bar of basic cell service then there is no
need for more 4G or 5G cell towers in your city or town.
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Existin Copper and FTP =roadband Bandwidth.
What is the Speed of Fiber Optics Vs Other Modes
• Fiber optics: Up to 10 Gbps (a data transfer rate up to 10 billion bits per second)
Cable connections: 25 — 300 Mbps (a data transfer rate up to 300 million bits per second).
• Digital Subscriber Lines (DSL): 0.5 — 75 Mbps.
Length and type of
media
4-minute song
5-minute video
9-hour audiobook
45-minute TV show
45-minute HDTV
show
2-hour movie
2-hour HD movie
Download Speed Comparison
Approximate 1 Mbps 5Mbps 10Mbps 20Mbps 100Mbps MEM
size
4 MB 30s 5s 3s 1.5s 0.3s 0.03s
30 MB 3m 40s 26s 13s 2.5s 0.2s
110 MB 10m 2m 1.5m 46s 9.2s 0.9s
200 MB 20m 5m 3m 1.5m 16s 1.7s
600 MB 1 h 15m 8.5m 4m 50s
1.0-1.5 GB 2h 24m 21.5m
3.0-4.5 GB 6h 72m 60m
5s
10.5m 1.5m 8s
32m 4.5m 25s
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Wireline Fiber -Optic Broadband Wireless Broadband
Data Medium Wireline glass fiber Wireless through the air
Spectrum Visible Light Microwave
Frequencies Terrahertz Megahertz
Frequency Ranges 405,000,000,000,000 Hz to 790,000,000,000,000 Hz 600,000,000 Hz to 86,000,000,000 Hz
Frequency Ranges
405 x 1012 Hz to 790 x 1012 Hz 600 x 106 Hz to 86,000 x 106 Hz
Wireless Interference None Ubiquitous
Data capacity Huge Limited
Download speed 1,000 Mbsp down 25-100 Mbsp down
Upload speed 1,000 Mbsp up 5-10 Mbsp up
Latency 1-5 mill -seconds 10-50 ms
Energy -efficiency Extremely efficient Extremely inefficient
More Frequent Installation Underground On poles
Less Frequent Installation On poles Underground
Ease of date capture Difficult Easy
Security Much more secure Much less secure
National Security More reliable Much less reliable
Electromagnetic Pulse Attack Survives Does not survive
Fire: Natural or Attack Survives Underground Does not survive=
Health Effects None Many Proven*
Biological Effects None Many Proven*
Environmental Effects None Many Proven*
Impacts in/from PROW None Significant**
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To: Eagle City Council
Jason Pierce jnierce(cityofeagle.org
Kenny Pittman kpittman(citvofeagle.org
Miranda Gold mgold(Z cityofeagle.org
Charlie Baun cbaun@'cityofeagle.otg
Brad Pike boikePcityofeagle.org
cc:
Bill Vaughan bvaughan@ citvofeagle.org
CA-U
cr,C.A.i0.-k±124/
From: Idahoans For Safe Technology
Re: Notice of Authority to Cease from Processing and Approving Applications for 4G and 5G
Small & Large Wireless Telecommunications Facilities and from any placement, construction,
modification and operations thereof, as non -compliant with, at minimum, said Rulings; and
Gratitude for joint ongoing preparation of the protective wireless Ordinance for Eagle.
June 9, 2020 SENT BY [EMAIL]
Notice to Agent is Notice to Principal; Notice to Principal is Notice to Agent
Dear Mr Mayor and Council Members:
Residents of Eagle are very grateful for the opportunity to provide this letter toward the
creation of a wireless ordinance that allows only those wireless infrastructures that are required
by federal and other pertinent laws.
At some point, you will have before you applications requesting authorization to place,
construct, modify and/or operate small wireless telecommunications facilities — which the
wireless industry has branded "small cells"— on street lights, utility poles or other street
furniture in the public rights -of -way, to facilitate the deployment of a close -proximity,
microwave -irradiating network enabling not only internet data and voice and text
transmissions, but also surveillance, crowd -control, and personal injury by means of pulsed,
data -modulated, microwave irradiation. Fortunately, contrary to rumor, officials have wide -
reaching legal authorities over these facilities.
From our colleagues' December 12, 2019 and other discussions with Federal Communications
Commission ("FCC") National Environmental Policy Act ("NEPA") attorneys Aaron
Goldschmidt, Erica Rosenberg and Paul D'Ari, we've learned that "every new [wireless
telecommunications facility ("WTF")] must undergo NEPA review", and that WTF applications
cannot be batched for such purpose.
Kindly note that both wireline and wireless internet protocol transmissions formerly fell under
FCC Title II, regulated as "Telecommunications Services." However, on October 1, 2019, the D.C.
Circuit Courts of Appeals in Case No, 18-1051, Mozilla et al. v. FCC, confirmed these "Services"
to be reclassified by the FCC as Title I, unregulated "Information Services". At present, only
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wireline and wireless voice transmissions are classified as Title II, regulated
"Telecommunications Services". Title I and Title II applications, therefore, need to be regulated
differentially by local planning boards and commissions: for example, with separate file
cabinets. Ideally, in larger cities and counties, separate staff should evaluate the respective
applications. This regulatory distinction means that no preemption applies to WTF
applications purposed for internet transmissions. Indeed, instead of permitting WTFs, various
local governments around the country have decided to supply public fiber -optics to the
premises (FTTP) for internet services, which is superior in every way to wireless internet
transmissions. S Fiber provides the fastest, clearest transmissions over the greatest distances. It
is reliable in storms and emergencies, not hackable, and emits no radiation. A decision for
public FTTP can also enrich the local economy while preserving the quiet enjoyment of streets.
Note also that the infrastructural copper wires and almost all fiber-optic cables already in place
were financed with public money and reside in public conduits or on poles in the public rights -
of -way. These publicly -financed fiber-optic cables and copper wirelines cannot lawfully be
claimed or used, particularly not exclusively, by unregulated private wireless companies as if
they were private property, purposed for private profit. Nor can they lawfully be destroyed.
When the local government reviews incoming applications, its staff needs to determine the true
identities of the respective applicants. As obvious as this may seem, the specific agent, shell
company and franchise of the wireless carrier, in practice, often fails to appear on the
application. This applicant entity needs to be named as its true corporate identity, e.g., not as a
"dba". Listing its board of directors on the application provides local staff the necessary
positive identification: requirement therefor should be added to the local ordinance.
Additionally, the entity filing application must be registered to do business in the State; so a
copy of the registration with the Secretary of State in the true name of the Applicant should
accompany the application. Even when these requirements do not appear in the ordinance, the
local government should refrain from permitting until such information comes forth.
Positive ID is essential for risk management: the smaller franchise, while uninsured or
personally insured with few assets, holds liability passed along to it by the larger corporation.
For this reason, requirement that the applicant provide proof of insurance and worthy assets
should be added to the local ordinance. If the local government requires a master license
agreement, then the Licensee under that agreement must also be the same entity as the
Applicant. The certificate of insurance, which may be required by statute, ordinance, or the
master license agreement, must name the Licensee as its insured - not a "dba". Should the local
Commission find itself unable lawfully to deny an application, it must pass all liability to the
Applicant/Permittee by requiring Commercial General Liability coverage without a "pollution
exclusion". The applicant should be required to submit a copy of the insurance policy so that a
risk manager can review the actual exclusions. Since major insurance companies do not cover
damages from radiofrequency/microwave (RF/MW) radiation or extreme low -frequency EMF,
municipalities are coerced sight -unseen into huge liability when they permit WTFs. Workers
who install and modify equipment are not protected by the Occupational Safety and Health
Administration (OSHA), which follows the FCC guideline only "voluntarily" and does not
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independently monitor transmissions. Similarly, no agency checks regularly on public
microwave radiation exposures from WTFs.
Typically, local governments do not give building permits to poorly designed structures that do
not meet the standards and intent of local and national building codes - purposed for life, safety
and public welfare. Equipment designed in such a way as to inflict biological harm upon the
public should not be given a building permit or permission to operate, as doing so would be in
violation of the intent of established codes.
Existing standards and codes such as building codes, fire codes, general plans, and city and
county guidelines, are purposed to avert harm, manage risk and liability, and protect and serve
the public welfare. The failure to uphold codes constitutes malpractice - a legal liability - and is
unjust to the public. The obvious precedents include authorities' handling of lead, asbestos,
cigarette smoking, seatbelts and airbags, noise, flame retardants, and so on. Telecoms'
aggressive intrusions into local governments often bypass these local protections, with
pressures imposed upon officials to bend to the FCC's whims; however, such overreaching may
be produced by, or result in, fraud.
WTFs cannot meet intent of local standards when:
• Causing widespread biological harm - the root of myriad adverse health effects;
• Compounding the effects of multiple, simultaneous frequency deployments, and wave
amplification and peaks producing dynamic "hot spots" that are not accounted for in FCC
guidelines;
• Producing interacting mechanical vibrations, a form of sound and noise nuisance;
• Ruining the quiet enjoyment of streets, the aesthetics of beautiful communities and their
landscapes; and
• increasing fire risks from elevated electrical consumption of WTFs and the poorly designed
Advanced Metering Infrastructure (AMI) grid, with the production of additional failure points;
and from the construction and operations of industrial equipment above high -voltage electrical
supply lines and near flammable trees and landscaping treated with volatile organic compound
pesticides.
For your reference, the Uniform Building Code (here 1970, Part 1, Chapter 1, Section 102) states:
"The purpose of this Code is to provide minimum standards to safeguard life or limb, health,
property, and public welfare by regulating and controlling the design, construction, quality of
materials, use and occupancy, location and maintenance of all buildings and structures within
the city and certain equipment specifically regulated herein.
The Idaho Building Code is purposed, at § 11-01-03, "to promote the public health, safety, and
general welfare of present and future residents, and to bring about coordinated and efficient
development that encourages affordable and fair housing stimulates economic opportunity, and
promotes diverse, inclusive communities with a variety of housing choices for residents."
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State building codes may differ slightly; but, according to the U.S. Federal Emergency
Management Agency (FEMA), the purpose of building codes is to "specify the minimum
requirements to safeguard the health, safety, and general welfare of building
occupants." (Emphasis added in all building code quotes.)
Therefore, under the Tenth Amendment and other federal and state provisions, any federal law,
or rule, such as from FCC, purporting to override the health, safety, and / or general welfare of
the public, can and must be overridden by the local government as prior superseded.
2019 Federal Precedents
We call to your attention that, on August 9, 2019, the D.C. Circuit Court of Appeals, in its Ruling
in Case 18-1129 vacated FCC Order 18-30's deregulation of WTFs and remanded this to the FCC.
In Case 18-1129, the judges stated that "the FCC failed to justify its determination that it is not in
the public interest to require review of [WTF] deployments" and ruled that "the Order's
deregulation of [WTFs] is arbitrary and capricious."
The D.C. Circuit Court is esteemed as superseding, and not part of, the other eleven Circuit
Courts - a subsidiary solely to the U.S. Supreme Court and of equivalent weight in the absence
of an appeal. There is no appeal in this case. The D.C. Circuit judges published reasons for their
8/9/19 Ruling, concluding:
• The FCC failed to address that it was speeding densification "without completing its
investigation of ... health effects of low -intensity radiofrequency [microwave]
radiation".
• The FCC did not adequately address the harms of deregulation.
• The FCC did not justify its portrayal of those harms as negligible.
• The FCC's characterization of the Order as consistent with its longstanding policy was
not "logical and rational." ... because the FCC mischaracterized the size, scale and
footprint of the anticipated nationwide deployment of 800,000-unit network of small
WTFs.
• Such WTFs are "crucially different from the consumer signal boosters and Wi-Fi routers
to which the FCC compares them".
• "It is impossible on this record to credit the claim that [WTF] deregulation will 'leave
little to no environmental footprint.'.
• The FCC fails to justify its conclusion that small WTFs "as a class" and by their "nature"
are "inherently unlikely" to trigger potential significant environmental impacts.
Therefore, this 8/9/19 D.C. Circuit Ruling renders every WTF application in Eagle
incomplete, where the application does not contain substantial written evidence of NEPA
review.
The D.C. Circuit judges provided judicial reasoning for remanding the matter back to the FCC
so that FCC could write rules specific to small WTFs "as a class". Such rules would address the
need for the FCC and the wireless industry to complete Environmental Assessments ("EA") and
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/ or Environmental Impact Statements ("EIS") for the then -anticipated nationwide deployment
of an 800,000-unit network of small WTFs. This judicial reasoning pertains to the class of small
WTFs that includes the antennas, radios, and ancillary equipment that are often attached to
utility poles, light poles and other street furniture.
As printed in the Federal Register on 11/5/19, the repeal of FCC 18-30 — a section of the
Commission's rules implementing the small WTF exemption — resulted in a lack of small WTF-
specific rules on the effective date of December 5, 2019.
The nationwide deployment of 800,000 additional WTFs is clearly a federal undertaking, since
the wireless industry licenses its wireless spectrum frequencies from the federal government.
Every single WTF planned for Eagle is part of this federal undertaking.
Until such time as any and every applicant for any WTF(s) in Eagle places substantial written
evidence in the public record proving that the applicant has completed NEPA and National
Historic Preservation Act (NHPA) review for the applied -for WTF, the application remains
incomplete, and any shot -clock remains stopped.
On October 1, 2019, the D.C. Circuit Court of Appeals further ruled against FCC overreach in
Case 18-1051, which states on page 146, re: Restoring Internet Freedom, 33 FCC Rcd. 311 (2018)
("2018 Order"):
"[Because] the Commission's Preemption Directive, see 2018 Order ¶¶ 194-204, lies beyond
its authority, we vacate the portion of the 2018 Order purporting to preempt 'any state or
local requirements that are inconsistent with [the Commission's] deregulatory approach[,]'
see id. ¶ 194."
This letter therefore encourages Eagle public officials to refrain, during the creation of our
Ordinance, from:
1. the processing of any and all WTF applications,
2. the placement of any new WTF,
3. the construction of any new WTF, and
4. the modification of any WTF that would result in the addition of any antenna, the
alteration of frequency, or in the increase in any Effective Radiated Power (ERP) from the
WTF;
5. allowing any operations of any sWTF whose post -August 9, 2019 application's final
inspection date was in any way incomplete, e.g., per required review under NEPA/
NHPA, or otherwise deficient.
In connection with the above -ceased activities, you may wish to inform applicants of the D.C.
Circuit Court Case 18-1129 requirement to comply with the above Rulings and NEPA and
NHPA.
The following testimony from Attorney Edward B. Myers, an intervenor in Case 18-1129, was
delivered at a November 19, 2019 hearing in Montgomery County, Maryland and again at a
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November 20, 2019 San Francisco hearing. The testimony was entered into the respective public
records at each of these hearings:
"I am an attorney and was an intervenor in the DC Circuit Case 18-1129. I worked closely with the
Natural Resources Defense Council on the briefs filed with the Court. My reading of the Court
decision is summarized in the following:
"The Federal Communications Commission issued a rulemaking order on March 30, 2018 to
expedite the deployment of Densified 4G/5G and other advanced wireless facilities (what the FCC
called "small cell" facilities). The FCC's order exempted all of these 4G/5G facilities from two
kinds of previously required review: historic -preservation review under the National Historic
Preservation Act (NHPA) and environmental review under the National Environmental Policy Act
(NEPA).
"On August 9, 2019, the US Court of Appeals for the District of Columbia Circuit vacated the
FCC's rulemaking order. The legal effect of vacating the FCC's rule necessarily means that the
prior rule was reinstated: any actions taken on the basis of the vacated rule must be reconsidered
under the terms of the prior rule.
"The prior rule required the FCC to apply NEPA to the construction of 4G/5G facilities.
Consequently, it is not lawful that any such facility be constructed without prior NEPA review.
While other actions of Congress and the FCC have attempted to circumscribe local authority over
the construction of Densified 4G/5G facilities, in light of the Court's decision, the localities are,
nevertheless, within their rights to require the sponsors of Densified 4G/5G facilities to provide
evidence that the FCC has conducted a NEPA review prior to approving any request for
construction.
"Moreover, in as much as the Court's decision vacated the FCC's rule, the decision applies
nationwide: its effect is not limited to the District of Columbia."
Attorney Ingrid Evans Testified at a Nov 20, 2019 San Francisco Board of Appeals Hearing:
"I would also like to add that this case that came up earlier, the United Keetoowah vs the
FCC case, which was recently decided by the DC Circuit, is very instrumental here, and I
think it is going to change the game on this, and I think it is something to which the Board
should pay attention. It is going to be required that these small cell towers and these
wireless permits be required to do an Environmental Impact... I would request that all of
these permits be delayed until DPH has gotten back to you on the health effects and an
environmental impact study has been done. Thank you."
Per this map, after the U.S. Supreme Court, the D.C. Circuit is generally considered the most
prestigious of American courts. Its jurisdiction contains the U.S. Congress and many of the U.S.
government agencies, and therefore is the main appellate court for many issues of American
administrative and constitutional law. Its Rulings apply to the entire United States, as admitted
at 3:34:55 in the public record video by Verizon Wireless Outside Counsel Paul Albritton at the
San Francisco Board of Appeals on November 20, 2019: "My colleague, Melanie Sangupta,
reminded me that NEPA does apply nationwide."
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FCC's overreach extends to its radiation exposure "guideline", which is currently under
litigation in the D.C. Circuit Court of Appeals. The guideline's history involves 1980s and
earlier experimentation, some of such study at once unscrupulous and irrelevant to
infrastructural radiation effects upon humans. A set of -120 pre-1990s biological studies, all of
which concluded harm, were claimed falsely by the guideline -setting ANSI -IEEE Committee
[American National Standards Institute (ANSI) with the Institute for Electronic and Electrical
Engineers (IEEE)] to establish, in 1991, a Hazard Threshold upon which the FCC guideline was
based. Unfortunately, some studies chosen to establish this Threshold beneath which no harm
could purportedly occur actually did show harm at lower intensities, positively disproving the
Threshold. The ANSI -IEEE Committee's Chair, John Osepchuk PhD, has claimed his Committee
had "reviewed over 20,000 studies", out of which —120 were chosen to establish the Hazard
Threshold. However, some of these studies showed harm even at <10% of the Hazard
Threshold, indicating scientific fraud. FCC has not allowed any study published since 1990 to
influence its guideline, which in any case pertains only to ambient power [flux] density, not to
the many more potent biological factors, e.g., duration, modulation characteristics, wavelength
in proximity to body dimensions, and the complexity of many simultaneous, overlapping
signals. Nor does it consider or acknowledge, despite EPA's warning to the contrary, vulnerable
subgroups in the population. Nevertheless, the guideline was rubber-stamped in 1996.
In the —30 years since the setting of the "guideline", many new peer -reviewed, journal -
published studies have concluded harm at much lower intensities, particularly where exposure
occurs over a long period of time. With many more WTFs now operating in residential and
sensitive areas such as schools, hospitals and nursing homes, vulnerable populations are being
exposed to ever-increasing radiation intensities, without cease, 24-7-365. Since ongoing
exposure has cumulative effects, people are incurring more serious harm, even if they are
unable consciously to attribute observed impairments, illnesses and early deaths to WTFs'
highly xenobiotic, pulse -modulated radiofrequency / microwave ("RF/MW") radiation
exposures.
Note, also, the FCC guideline is based upon the averaging, over time, of digital signals
containing spikes so as to suppress the actual intensity of those spikes - the high -intensity
radiation peaks that are most bioactive. The central nervous system reacts in the moment to
sudden high -intensity spikes. Pulse -modulation is a more harmful form of amplitude
modulation, in which the signal is off much of the time but with peaks that last only for tiny
fractions - thousandths - of a second, with as many as thousands of spikes per second.
Although a person cannot be conscious of each spike of radiation, the brain and all cells in the
body do respond in the moment, without limitation, by means of altered efflux kinetics.
Modulated wave is more harmful than continuous, or analog, wave.
The complex interactions of the many simultaneous, overlaid signals present, or potentially
present, in Eagle, particularly those in the millimeter ("mm") microwavelengths, can combine
via a process known as "heterodyning" to approach or achieve resonance with the oxygen (02)
molecule, which has a strong resonant frequency at 60 GHz - a wavelength of 5mm. Since 60
GHz is unregulated and FCC allows anyone to place a tiny antenna upon a rooftop without
official knowledge, chronic exposure to its presence is, or will soon be, all -too common to incur.
Additionally, the first harmonic of a 30 GHz signal, the second harmonic of a 20 GHz signal,
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and the third harmonic of a 15 GHz signal, are 60 GHz: these are but four means by which
chronic exposure to 60 GHz could occur in a "5G" world - even without a 60 GHz signal in
operation. An infinite number of combinations of fundamental wavelengths and harmonics can
produce 60 GHz - a yet larger infinity when considering heterodyning, as well. When 02
molecules absorb the energy from 60 GHz radiation, the charge state of the oxygen is changed,
which in turn alters its normal chemical reactivity. When signals in, for example, the 3-5 GHz
range, which can penetrate roughly 1.5 cm to 9 cm into the body through the skin (with deeper
penetration yet into the eyes and ears, with little or no impedance), combine to achieve this 60
GHz resonance, such signals are well within the range of blood vessels found in humans and
animals. Even where perfect 60 GHz is not quite achieved, nearby frequencies of 57 - 63 GHz
still affect the 02 molecule somewhat. Alteration of the charge states of oxygen located in
human or animal blood may inhibit the binding of hemoglobin with oxygen, resulting in
hypoxia - a low blood -oxygen level. This constitutes the basic biophysics of 02 resonance.
Many other bioeffects are established in the extremely large body of scientific literature.
Kindly remember that the federal Telecommunications Act of 1996 ("TCA"), at 47 U.S. Code
§ 332 (c)(7)(B)(4), recognizes the actual environmental effects of RF/MW radiation from WTFs,
indicating by extension its recognition of actual health effects therefrom. Despite the existence of
a few wrong "precedents" constituting encroachment of the Third Branch upon the Second, this
Act unambiguously left the regulation of the health effects of WTFs' RF/MW radiation entirely
within state and local officials' authorities, obligating said officials to protect their residents
against health effects with regard to all related activities of WTFs: placement, construction,
modification and operations.
In plain reading of 47 U.S. Code § 332 (c)(7)(B)(4):
"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."
As you can clearly read here, all operations of all WTFs remain, and have always been, under
the regulatory authorities of state and local officials. "Operations", which pertain to the RF /
MW radiation transmissions of WTFs, and the transformation of electrical energy into such,
were attempted to have been preempted by the authors of the original draft of TCA. However,
Congress removed "operations" from the preemption clause at 47 U.S. Code § 332(c)(7)(B)(4),
positively leaving the regulation of operations within state and local authorities' hands, for any
and all reasons and grounds: health effects, environmental effects, agricultural effects, energy
conservation, atmospheric effects, weather forecasting effects, astronomy effects, aesthetic
effects, historic preservation, property values, aviation safety, local and state economies, and
more.
Legislative purposes cannot be ignored, as they supersede specific laws and rules thereunder.
The primary purpose of the U.S. Congress's TCA "mobile services" is to "to promote the safety
of life and property". Congress set up FCC, for, among other purposes, "promoting safety of
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life and property". Therefore, where a local government sees actual and potential consequences
of WTFs contrary to the said purposes, it is authorized to ensure that Congressional intent is
rather fulfilled.
TCA intent is further evidenced in its Conference Report, pp. 207-209:
"The conferees also intend that the phrase 'unreasonably discriminate among providers of
functionally equivalent services' will provide localities with the flexibility to treat facilities that
create different visual, aesthetic, or safety concerns differently to the extent permitted under
generally applicable zoning requirements even if those facilities provide functionally equivalent
services. For example, the conferees do not intend that if a State or local government grants a
permit in a commercial district, it must also grant a permit for a competitor's 50-foot tower in a
residential district."
The U.S. Congress never intended 50-foot towers in residential areas, nor macro -tower antennas
just 6 feet off the ground. Such WTFs are clearly ultra vires: outside the law and beyond the
intent of the underlying law, against which all FCC rules must be measured.
The U.S. Supreme Court has, of course, taken notice of FCC overreach. According to Attorney
John Bergmayer, Legal Director at Public Knowledge, as of August 1, 2019:
"The FCC's effort to dramatically expand its power at the expense of traditional state and local
government prerogatives contradicts numerous federal and state courts that have read the
statute and found it contains no such broad preemption authority. It also contradicts several
decisions decided by the Supreme Court last term, notably Virginia Uranium, Inc. v.
Warren (federal jurisdiction does not extend beyond bounds of comprehensive federal statute
to intrude on related state authority) and Kisor v. Wilkie (statutory interpretation that fails to
identify genuine ambiguity deserves no deference)".
The preemption clause's circumscribed language is unambiguous. Claims that "environment"
means what is not environment, and that operations are preempted though not preempted, are
irrational, deserving no more deference than a king without clothes. Laughter might be due,
were the consequences of official error not severe.
Public officials might question whether the wireless industry attorneys' demands that they
dutifully parrot "Our hands are tied [by federal law]" constitute anything other than false and
dangerous cultish indoctrination. The 24-year repetition of this rumor fails to substantiate it.
Along with this rumor, industry attorneys' urgings that public officials suppress constituents'
speech should be recognized as the very fronting of officials on behalf of a mob -like criminal
enterprise to coerce by fraud in the inducement the placement, construction, modification and
operations of WTFs that, without said prima facie First Amendment violation, would never have
otherwise occurred. Certainly, the U.S. Congress cannot override or preempt the very
Constitution that establishes its own existence, nor can it take from the Constitutions
establishing the States, these further protected by the former's Tenth Amendment and the
People's Ninth. Nor can Congress take building codes or oaths of office.
Eagle Residents encourage your rejection of any such absurdity, incoherence, and irrationality;
our officials' standing cannot be rendered questionable by any industry's deceptive games.
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Thus, in addition to the afore listed requests, we finally call for the elimination of any false
pronouncements in repetition of industry misrepresentations, i.e., denying the actual, legal
rights of constituents under officials' yet -extant, neither preempted nor preemptible building
codes and oaths of office.
We trust you shall rather realize constituents' full and primary rights to health, safety, property
values, and a clean and energy -efficient environment; as well as our freedom from assault,
warrantless surveillance, privacy invasion and data -seizure in our homes and communities, and
thereby provide us the quiet enjoyment of our streets.
Thank you for your very kind - and long - attention. Would you simply confirm your receipt
and reading of this letter. Feel free to suggest any ideas you have, as well, for our Ordinance.
Respectfully,
Hank Allen
Idahoans For Safe Technology
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NOTE: THIS IS A DRAFT INTENDED FOR USE BY AN ATTORNEY. IT IS NOT LEGAL ADVICE. IN
THIS CASE, ONE SHOULD RUN THE LETTER BY A LOCAL ATTORNEY TO MAKE IT MOST
APPLICABLE TO THE LOCAL SITUATION. THE CONTRIBUTORS TO THIS DRAFT DISCLAIM
LIABILITY: THE USE OF THE BELOW STATEMENTS, IN WHOLE OR PART, IS YOUR CHOICE.
11A-4-4 SPECIFIC LAND USE STANDARDS:
FFF. Wireless Communication Facilities: Personal wireless facilities, spires, poles, antennas,
steeples, towers, and other such structures. Wireless communication facilities and towers shall
comply with the following:
1. Purpose. The purpose of this chapter is to establish uniform and comprehensive policies and
procedures for the placement, construction. modification and operation of secure, reliable, and
safe wireless telecommunications infrastructure and wireline telecommunications/broadband
infrastructure that respects local control, democracy, public safety, and environment.
Given the many well-known problems with wireless broadband, including, but not limited to —
• energy inefficiency
• safety
• reliability
• security
• privacy
• surveillance
• distraction of residents and visitors using wireless broadband services while traveling in
public or driving on our streets
... the City considers Wireless Telecommunications Facilities (WTFs) most appropriate for
wireless telecommunications services (i..e. outdoor phone calls via wireless licensed and
unlicensed frequencies). The City considers Wireline Facilities (fiber-optic, coaxial, copper
and other wireline services) most appropriate for information services (i.e. Internet, audio/
video streaming, gaming and other data -intensive applications). This City policy recognizes
the nearly ubiquitous capability of wireless carriers to enable Wi-Fi calling from residents'
home wireless routers, which is an unlicensed wireless service that can be powered on and
off by each resident, as needed. This is preferable to any 24/7 wireless service that would be
installed on private or public land within the city that cannot be powered on and off, as
needed. In short, the City does not consider wireline broadband and wireless broadband to
be functionally equivalent services with respect to 1996 Telecommunications
Act's § 332(c)(7)(B)(i):
Title 47 USC§ 332(c)(7)(B)(i):
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(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.
FTTP Broadband and Wireless Broadband Are NOT Functionally Equivalent Services
Data Medium
Spectrum
Frequencies
Frequency Ranges
Frequency Ranges
Wireless Interference
Data capacity
Download speed
Upload speed
Latency
Energy -efficiency
More Frequent
Installation
Less Frequent
Installation
Wireline Fiber -Optic Broadband
Wireline glass fiber
Visible Light
Terrahertz
405,000,000,000,000 Hz to
790,000,000,000,000 Hz
405 x 1012 Hz to 790 x 1012 Hz
None
Huge
1,000 Mbsp down
1,000 Mbsp up
1-5 mill -seconds
Extremely efficient
Underground
On poles
Ease of date capture Difficult
Security Much more secure
National Security More reliable
Electromagnetic Pulse
Attack
Fire: Natural or Attack Survives Underground
Survives
Wireless Broadband
Wireless through the air
Microwave
Megahertz
600,000,000 Hz to
86,000,000,000 Hz
600 x 106 Hz to 86,000 x
106 Hz
Ubiquitous
Limited
25-100 Mbsp down
5-10 Mbsp up
10-50 ms
Extremely inefficient
On poles
Underground
Easy
Much less secure
Much less reliable
Does not survive
Does not survive=
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Wireline Fiber -Optic Broadband Wireless Broadband
Health Effects None Many Proven*
Biological Effects None Many Proven*
Environmental Effects None Many Proven*
Impacts in/from PROW None Significant**
* Link to tens of thousand of peer -reviewed studies — established science that proves Negative
Health, Biological and Environmental Impacts of RF microwave radiation exposures
** Link to safety, privacy and property value harms from Wireless Telecommunications Facilities
(WTFs) installed near homes
In service of the purpose stated in FFF(1), the City seeks to achieve the following objectives:
a. Protect and promote the public health, safety and welfare of City residents and visitors;
b. Promote public access to telecommunications which is safe, reliable, affordable, secure,
respectful of privacy, consumer rights, and rights detailed in the Constitution of Idaho;
c. Ensure that the rights of residents and visitors with disabilities or pacemakers are duly
protected under the laws, constitutions and rights of both the State of Idaho and United
States of America;
d. To the maximum extent possible under state and federal laws, prevent abuse of surveillance
capabilities via telecommunications and information services and, in particular, prevent use
of facial recognition or other surveillance equipment or devices with artificial intelligence
capacities;
e. Require bonds, indemnity, insurance, and/or any other financial protective
measures sufficient to protect the City from potential claims for injuries, illnesses and
deaths from pulsed, data -modulated, Radio -frequency Electromagnetic Microwave
Radiation (RF-EMR) exposures as well as from liabilities for equipment removal or other
costs caused by the placement, construction, modification or operation of wireless or
wireline infrastructure .
f. Regulate structures and siting to prevent or reduce other adverse impacts, such as top-
heavy utility poles with a likelihood of falling on pedestrians;
g. Preserve community character and protect aesthetic quality, preventing clutter and visual
blight and fostering an aesthetically pleasing environment;
h. Minimize interference with pedestrian and vehicular traffic,
i. Avoid damage to or loss of street trees, protecting historic, cultural, and natural resources
by preventing degradation of the surrounding settings or directly upon the resource;
3 I Page
j. Encourage siting of wireless infrastructure in preferred locations to minimize intrusion of
these uses into residential, community, and protected environmental areas;
k. Minimize the total number of antennas throughout the community while still ensuring
outdoor access to telecommunications service.
1. Protect land and residential uses from potential adverse impacts of wireless infrastructure
and protect the City's public rights -of -ways and municipal infrastructure located within the
City's public rights -of -way;
m. As long as the City is bound by state or federal laws requiring the following, this Chapter is
not intended to, nor shall it be interpreted or applied to:
(1) prohibit or effectively prohibit any personal wireless telecommunications service
provider's ability to provide personal wireless telecommunications service;
(2) prohibit or effectively prohibit any entity's ability to provide telecommunications
service, subject to any competitively neutral and nondiscriminatory rules, regulations
or other legal requirements for rights -of -way management;
(3) unreasonably discriminate among providers of functionally equivalent service;
(4) regulate the placement, construction or modification of personal wireless service
facilities on the basis of environmental effects of radio frequency emissions to the
extent that such wireless facilities comply with the FCC's regulations concerning such
emissions;
(5)
prohibit any collocation or modification that the City may not deny under federal or
state law;
(6) impose any unreasonable, discriminatory or anti -competitive fees or
(7) otherwise authorize the City to preempt any applicable federal or state law.
n. This Chapter is not intended to and will not limit or prejudice any individual's right to
accommodation or protection under the Fair Housing Amendments of 1988 American
Disabilities Act, or any similar state or federal law or human right.
o. No Waiver of Standing. This Chapter is not intended to and will not limit or prejudice the
City's own rights to legal actions to protect the City and its residents. The City's grant or
grant by operation of law of Wireless Telecommunications Facilities (WTFs) does not waive,
and shall not be construed to waive, any standing of the City to challenge relevant federal or
state law.
2. Towers In Zoning Districts:
a. Personal wireless facilities including towers supporting amateur radio antennas shall be
prohibited in all residential land use districts. Personal wireless facilities shall be
camouflaged or concealed, not readily identifiable as such, designed to be aesthetically
compatible with existing and proposed uses on the site in all residential zones.
4 I P a g e
3. Collocation Requirements:
a. A proposal for a tower mounted Wireless Telecommunications Facility (WTF) may not have
an antenna installed any lower than thirty five feet (35') above the ground and the WTF
coolication shall not be approved unless the city council finds that the telecommunications
equipment planned for the proposed tower cannot be accommodated on an existing or
approved tower or building within the following radii of the proposed tower:
(1) A two (2) mile radius for towers with a height over one hundred ten feet (110').
(2) A one mile radius for towers with a height over eighty feet (80') but not more than one
hundred ten feet (110').
A one-half (1/2) mile radius for towers with a height over fifty feet (50') but not more
than eighty feet (80').
(4) A one-fourth (1/4) mile radius for towers with a height over thirty-five feet (35') but
not more than fifty feet (50').
b. It shall be the burden of the applicant to demonstrate that the proposed tower or antenna
cannot be accommodated on an approved tower or building within the required search
radius due to one or more of the following reasons:
(1) Unwillingness of another tower or facility owner to entertain shared use.
(2) The proposed collocation of an existing tower or facility would be in violation of any
local, state or federal law.
The planned equipment would exceed the structural capacity of the existing or
approved tower or building, as documented by a qualified and licensed professional
engineer, and the existing or approved tower cannot be reinforced, modified, or
replaced to accommodate planned or equivalent equipment at a reasonable cost.
(4) The planned :iv[/i i3at would cause interference mrtnrir11q invpaating tits ►. '2ity-e€
other existing 1r'plrnr.ad equipment at the tower or building as documented by a
qualified and licensed professional engineer and the interference cannot be prevented
at a reasonable cost.
b. Wireless antennas in nonresidential and open space districts may be permitted to be
attached to existing light standards and power line support devices (or replacement
equivalent of same height) provided, however, the antenna(s) are either flush mounted or
mounted in a manner that provide minimum visual impact. Notwithstanding the foregoing,
all provisions of this subsection FFF shall be applicable to wireless antennas located on
existing light standards and power line support devices.
(3)
(3)
(5)
Existing or approved towers and buildings within the search radius cannot
camanuncitt✓J/.a panned equipment at a height ne riawry tt funstian ►•easonably as
documented by a qualified and licenacilireficcianr2 engineer.
(6) Other unforeseen rcastnt thrt mar.: it unf asible to locate the planned
tciccon'/naMniartlitino arrsi. rL:ent upon an zIIitti:War ermwoved towcr or building as.
5 I Page
doeumentcr iv/ a qu&" ficd and liccnso !:-efrrri rl. vrginae1-Ir etl►aririftrai.��r2.
qualified to provide necessary documentation.
c. Any proposed commercial wireless telecommunication service tower shall be designed,
structurally, electrically, and in all respects, to accommodate both the applicant's antennas
and comparable antennas for at least two (2) additional users if the tower is over one
hundred ten feet (110 feet) in height, for at least one additional user if the tower is over
fifty feet (75 feet) in height.
d. Towers must be designed to allow for future rearrangement of antennas upon the tower
and to accept antennas mounted at varying heights.
e. Personal wireless facilities proposed at a location which has an approved conditional use
permit (approved after the effective date hereof) for an existing facility which was required
to allow collocation shall not be required to obtain a separate conditional use permit as
long as all the requirements of the previously approved conditional use permit will be
complied with. Design review, and subsequent building permit, will be required for any
such proposal.
4. Tower and Antenna Design Requirements:
a. All personal wireless facilities shall be required to obtain design review approval prior to
construction.
b. Personal wireless facility towers shall be of a monopole design unless the city council
determines that an alternative design would better blend into the surrounding
environment.
c. With the exception of necessary electric and telephone service and connection lines
approved by the issuing authority, no part of any antenna or tower nor any lines, cable,
equipment or wires or braces in connection with either shall at any time extend across or
over any part of the right of way, public street, highway, sidewalk, or property line.
d. Every tower affixed to the ground shall be protected to discourage climbing of the tower by
unauthorized persons. The climbing pegs within the bottom twenty feet (20') of the tower
shall be removed and shall only be used when the tower is being serviced.
e. Metal towers shall be constructed of, or treated with, corrosive resistant material.
f. Wood poles shall be impregnated with rot resistant substances.
g.
The Permittee shall design and install the smallest possible equipment that can serve the
Telecommunications service area that will close a proven significant gap
in telecommunications coverage, as established by a semi-annual citywide Need Test.
h. Wireless Need Test means is designed to measure the signal strength of all Wireless
Carrier -specific frequencies. Industry -standard Drive Tests can measure actual signal
strength for all antennas currently installed and operating in the City. The Drive Tests
would log, second -by -second, the existing signal strengths in decibel-milliWatts (dBm) for
each frequency transmitted from antennas that reach the City's streets. The raw data and
6 I Page
j•
report would be entered into the public record every six months, so the results can be
verified by any member of the public.
Importantly, the dates of the Drive Tests need to be kept secret from all Wireless
Telecommunications carriers and their agents, so such parties would have no opportunity
to power down antennas under their control during the Drive Tests — to prevent these
parties from artificially creating a temporary significant gap in telecommunications service
coverage in an attempt to game the results of the Drive Tests.
The results of the Drive Tests would provide verifiable, objective data to determine if a
particular proposed WTF would be legally necessary to be installed in the public rights -of -
way within the City's jurisdiction and legal authority. The raw data from the Drive test
would be used to establish if any carrier -specific significant gaps in telecommunications
service coverage actually exist, considering results from the voice -frequencies specific to
each carrier. Any new WTF would only be licensed by the City if there is a proven significant
gap in telecommunications service that could be corrected placing and constructing a
wireless antenna using the "least intrusive means".
5. Tower Setbacks:
a. Towers shall meet the setbacks of the underlying land use district with the exception of
mixed use and highway mixed use land use districts, where towers may encroach into the
rear setback area, provided that the rear property line abuts another mixed use or highway
mixed use property and the tower does not encroach upon any easements.
b. The base of the personal wireless facility shall be set back a minimum distance of two (2)
times the height of the tower from the property line of any residential dwelling or 500 feet,
whichever is greater.
c. If the tower does not exceed the height limitations of the land use district in which it is
located, the tower shall meet the setback requirement of the land use district except as
allowed in subsection FFF4a of this section. If the tower exceeds the height limit of the land
use district in which it is located, the tower shall be set back one foot (1') for every ten feet
(10') in total tower height. In either case, the tower shall be constructed to the
telecommunications industry association/electronic industries association (TIA/EIA) 222
revision F standard entitled "Structural Standards For Steel Antenna Supporting
Structures" or as hereinafter may be amended. Otherwise, the tower shall be located a
minimum of one foot (1') for each foot of height from all property lines (the fall zone). No
storage or structures other than the accessory utility buildings, are permitted in the fall
zone, except as may be specifically permitted by the city council through a conditional use
process.
d. Towers shall be set back from all existing public right of way lines (or planned right of way
lines if additional is to be acquired in the future) by a minimum distance equal to twice the
height of the tower including all antennas and attachments or 500 feet, whichever is
greater.
e. Towers shall not be located between a principal structure and a public street.
7 I P a 9 e
f. A tolvo'a setback may be rodvauel it itz lvcii,::an in relaisra tt a ir.:Llis alvi?et u i��'rt tl►+
sole discretion of the sit/ si►u►ril/rc r12oty the integration of a tower into an existing or
proposed structure such st a iI►a: ah steeple, light standard, power line rawvit device, or
similar structure.
g.
g. If this requirement conflicts with other setback requirements of this code the setback
with the greater distance shall prevail, except as may be allowed in subsection FFF4f of this
section.
6. Small Wireless Telecommunications Facilities within the Public Right -of -Way:
a. Wireless Telecommunications Facilities shall not be sited within residential zoned
neighborhoods, school zones, public parks & historic locations.
b. Setbacks from Residential Zones - SWTFs shall be located a minimum distance of 1,000 feet
from the closest residential property line.
c. Setbacks from School Zones, Public Parks & Historic Places - SWTF's shall be located a
minimum distance of 1,000 feet from the closest property line.
d. Notwithstanding the foregoing, all provisions of this subsection FFF shall be applicable to
small wireless antennas located on existing light standards and power line support devices.
7. Tower Lighting, Signage, And Attachments:
a. No antenna or tower shall have affixed or attached to it in any way, except during time of
repair or installation, any stationary lights, strobe lights, reflectors, flashers, or other
illuminating device, except as specifically required by the federal aviation administration,
federal communications commission, or other federal or state authority.
b. When incorporated into the approved design of the tower, light fixtures used to illuminate
ball fields, parking lots, or similar areas may be attached to the tower if approved by the
city.
c. The use of any portion of a tower for signs, other than warning or equipment information
signs, is prohibited.
d. No tower shall have constructed thereon, or attached thereto, in any way, any platform,
catwalk, crow's nest, or like structure, except during periods of construction or repair.
S. Amateur Radio Antennas:
a. In accordance with the federal communications commission's preemptive ruling PRB 1,
towers erected for the primary purpose of supporting amateur radio antennas may exceed
thirty feet (30') in height provided that a determination is made by the city that the
proposed tower height is technically necessary to successfully engage in amateur radio
communications. A conditional use permit is required for any amateur radio antenna in
excess of thirty five feet (35').
9. Accessory Utility Buildings:
8 I Page
a. All utility buildings and structures accessory to a tower are required to have design review
approved by the city prior to construction.
10. Abandoned Or Unused Towers Or Portions Of Towers:
a. As a condition of approval of any required conditional use permit for personal wireless
facilities, all abandoned or unused towers and associated facilities shall be required to be
removed within sixty (60) days of cessation of use as a personal wireless facility unless a
time extension is granted by the city. A copy of the relevant portions of a signed lease, which
requires the applicant to remove the tower and associated facilities upon cessation of the
use as a personal wireless facility, shall be submitted at the time of application. In the event
that the tower and associated facilities are not removed within the sixty (60) days, the
tower and associated facilities may be removed by the city and the costs of removal
assessed against the property.
11. Additional Application Submittal Requirements:
a. In addition to the information required elsewhere in this title, development applications for
personal wireless facilities, shall include the following supplemental information: [
(1) Documentation from a qualified and licensed professional engineer showing that the
proposed facility will be in compliance with the FCC standards regarding radio
frequency (RF) emissions as they relate to the general public, including aggregate
emissions for all RF-EMR emitting equipment operating in the City of Eagle..
(A) RF Changes Compliance Schedule. If such FCC guidelines are altered to become
more protective, all existing facilities or antennas shall be brought into compliance.
If the alteration was foreseen and if reasonable, then applicants shall be required
to bring facilities into immediate compliance. If rapid compliance is not feasible,
the City may halt or require the halt of transmissions until installations are brought
into compliance. Otherwise, the City may choose to set a schedule for compliance
with changes in these guidelines. The City reserves the right to revoke permits for
facilities and antennas which fail to be in compliance.
(B) RF-EMR Report. The applicant shall submit with application and keep current
an RF-EMR exposure report that certifies that the proposed wireless facility, both
individually and cumulatively with all other emitters that contribute more than 5%
to the cumulative emissions in the vicinity (if any), will comply with applicable
federal RF exposure standards and exposure limits. The RF report must be
prepared and certified by a neutral third -party RF engineer acceptable to the
City. The RF report must include the actual frequency bands and the maximum
power levels (in watts of effective radiated power) that the existing and proposed
antennas at the site are capable of outputting irrespective of any radio currently
selected. The report must show the location and orientation of all transmitting
antennas and the boundaries of areas with RF-EMR exposures in excess of the
uncontrolled/general population limit (as that term is defined by the FCC) and also
the boundaries of areas with RF-EMR exposures in excess of the controlled/
occupational limit (as that term is defined by the FCC). Each such boundary shall
be clearly marked and identified for every transmitting antenna at the project site.
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If the applicant submits a batched application, a separate RF report shall be
prepared for each facility associated with the batch. All RF compliance reports and
the selection of circumference of the vicinity subject to testing shall be reviewed
and confirmed by an independent consultant retained by the City.
(2) The applicant shall provide the full insurance policy proving it provides
comprehensive general liability insurance in the amount of no less than one million
dollars ($1,000,000.00) per occurrence with an aggregate of ten million dollars
($10,000,000.00) and a company authorized to do business in the State of Idaho shall
write the policy. The policy shall not contain any exclusions of coverage for
Hazardous Pollution activities and no exclusion for injuries, illnesses or deaths
from RF-EMR exposures. The insurance policy shall require at least thirty (30) days'
notice to the City prior to termination of coverage for any reason. The applicant shall
secure substitute liability insurance coverage prior to actual termination; failure to
maintain comprehensive general liability insurance shall result in immediate
withdrawal of the permit by the City. At time of application, the applicant shall provide
written indemnification for the City. The applicant shall provides Proof of Insurance
with the City as a named Insured. The applicant shall provide proof of Pollution
Liability Coverage for RF-EMR exposures. The applicant shall provide a list of its
board of directors and its audited financials for purposes of indemnification.
NEPA Review: The applicant must provide substantial written evidence proving that
the wireless facility has completed NEPA review and is in full -compliance with FCC
regulations regarding NEPA.. If exemption is claimed, the applicant must state the
basis for such exemption and must provide substantial written evidence, including all
supporting documents, that the facility qualifies for the exemption;
(4) Americans with Disabilities Act Compliance. All facilities shall be built in
compliance with the Americans with Disabilities Act (ADA). No wireless
telecommunications facility or antenna shall be approved which would:
(A) render any portion of the rights of way noncompliant with the ADA.
(B) hinder equal access and enjoyment of public and private property to residence
with Electric Magnetic Sensitivity (EMS) disabilities or pacemakers.
Expert Review. Due to the technical nature of wireless facilities applications, the City
shall retain an independent consultant, at the applicant's expense, who is an expert in
the field to evaluate the wireless facility applications.
(6) Application Deposits and Fees. The minimum application fee and deposits shall
serve to initiate the process of reviewing, evaluating, conducting a public hearing, and
other activities involved in consideration of the application, as well as conducting
oversight of the construction of the wireless telecommunications facility or antenna to
ensure compliance with zoning requirements. The applicant shall submit all applicable
fees, including deposits, with the application. The application fee shall be
nonrefundable. Deposits shall be used to cover specific costs, and any unused
remainder shall be returned to the applicant. When necessary, the applicant shall be
informed and required advance a deposit for known costs, or to reimburse unexpected
(3)
(5)
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costs. At minimum, fees and procedures required with submission of application
include:
(A) Application Fee. The City shall assess a minimum per -installation fee of $500 for
a new wireless telecommunication facility; $300 for a new antenna and recurring
fees, including ROW access fee, and $1,000 for non -recurring fees for a new pole.
Application fees are nonrefundable and must be paid again if the application
received is incomplete.
(B) Independent Expert or Consultant Deposit. A deposit of $4000 shall be provided
by the applicant so that consultants, including consulting experts, are paid
pursuant to an adopted fee schedule resolution.
(C) Fees shall be raised annually in accord with inflation and rounded to the nearest
dollar. The City may, through a resolution of City Council, set higher fees and
deposits.
(7) Indemnification. Permittee shall provide an executed agreement in the form provided
by the City, pursuant to which Permittee and any related third parties agree to defend,
hold harmless and fully indemnify the City of Eagle, its officers, employees, agents,
attorneys, and volunteers, from
(A) any claim, action or proceeding brought against the City of Eagle or its officers,
employees, agents, or attorneys to attack, set aside, void, or annul any such
approval of the City or
(B) a successful legal action brought against the City for loss of property value or other
harm caused by the placement or operation of a wireless communication facility
installation.
(C) Such indemnification shall include damages, judgments, settlements, penalties,
fines, defensive costs or expenses, including, but not limited to, interest, attorneys'
fees and expert witness fees, or liability of any kind related to or arising from such
claim, action, or proceeding whether incurred by the Permittee, the City of Eagle
and/or the parties initiating or bringing such proceeding. The agreement shall also
include a provision obligating the Permittee to indemnify the City of Eagle for all of
the Town's costs, fees and damages which the City incurs in enforcing the
indemnification provisions of this Section.
(8) Annual Recertification. On July 1, all Telecommunications Providers shall submit an
affidavit to the City which shall list, by location, all communications facilities it owns
within the City, and shall certify
(A) each such installation remains in use;
(B) evidence of insurance as required in section 12-a-2 of this chapter, in the form of a
certificate of insurance.
(C) each active installation has been inspected for safety and found to be in sound
working condition and in compliance with all federal regulations.
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(9)
(D) provide the Public Works Director the utility's name, address and regular business
telephone numbers, the name of one or more contact persons who can act on
behalf of the utility in connection with emergencies involving the utility's facilities
and a 24 hour telephone number for each such person
(E) each such installation which is no longer in use. Any [tele]communications facility
that is no longer in use shall be removed by the Telecommunications Provider
within thirty (30) calendar days of delivery of the affidavit.
(F) Any small cell wireless installation which is not removed within 30 days after being
listed as no longer in use in the annual recertification affidavit shall be subject to a
fine of $100/day until such installation is removed.
(G) Where such annual recertification has not been properly or timely submitted, or
equipment no longer in use has not been removed within the required 30-day
period, no further applications will be accepted by the City until such time as the
annual re -certification has been submitted and all fees and fines paid.
Emergency Action. The City retains the right and privilege to remove or move any
wireless telecommunication facility or antenna, as well as pole, support structures,
and other accessories which, as the City may determine, in its sole discretion, to be
necessary, appropriate or useful in response to any public emergency. If circumstances
justify and permit, the City shall notify the applicant and give the applicant an
opportunity to move or remove its own facilities. If circumstances do not permit, the
City may notify the applicant as promptly and as reasonably possible afterwards.
(10) A report from a qualified and licensed professional engineer which describes the
tower height and design (including a cross section and elevation); documents the
height above grade for all potential mounting positions for collocated antennas and
the minimum separation distances between antennas; describes the tower's capacity,
including the number and type of antennas that it can accommodate; with complete
manufacturer name, model numbers and specification sheets; documents what steps
the applicant will take to avoid interference with established public safety
telecommunications; GPS coordinates; includes an engineer's stamp and registration
number; and includes other information necessary to evaluate the request.
(11) For all personal wireless facilities, a letter of intent committing the tower owner and
his or her successors to allow the shared use of the tower, as required by this code, if
an additional user agrees in writing to meet reasonable terms and conditions for
shared use.
(12) Documentation showing that the proposed tower complies with regulations
administered by federal aviation administration.
(13) Written approval of the site location with specific reference to the height of the
antenna structure and any lighting issues, from the federal aviation administration, the
chief of the Idaho bureau of aeronautics, and the Boise airport commission and an
aviation easement approved by the Boise airport commission.
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(14) Data files and charts showing outdoor frequency -specific RF-EMR signal strength
measurements for all frequencies that the proposed antenna can output. Propagation
charts showing existing and proposed signal strength (ranging from 0 dBm to -120
dBm) at the target site and within an area large enough to provide an understanding of
why the facility needs to be in the chosen location.
(15) A written analysis demonstrating that the proposed site is the most appropriate site
within the immediate area. For the purposes of this subsection, the analysis shall
include all properties within the search radii stated above. The analysis shall include,
but is not limited to, the following:
(A) Description of the surrounding area, including topography;
(B) Natural and manmade impediments that would obstruct adequate cellular
telephone transmissions;
(C) Physical site constraints that would preclude construction of a cellular telephone
facility on any other site;
(D) Technical limitations of the system that limit siting options.
12. Permits:
a. It shall be unlawful for any person to erect, construct, re -erect, or replace, any tower
without first making application to the city and securing a building/zoning permit.
b. A building/zoning permit shall not be required for antennas and/or towers erected
temporarily for test purposes, for emergency communication, or for broadcast remote pick
up operations. Temporary antennas shall be permitted for a maximum of seventy two (72)
hours unless specifically approved by the city council.
c. In addition to the findings required and conditions permitted for conditional use permits,
as stated within section 11A-8-4 of this title, the city council shall make an additional
finding concerning the duration of the conditional use permit. Upon finding that the
conditional use permit is to be limited in duration, a condition limiting the duration and the
basis for such a condition shall be included within the findings of fact and conclusions of
law for the conditional use permit.
13. Additional Requirements For Notice Of Public Hearing:
a. All personal wireless facilities require a conditional use permit and shall comply with the
conditional use notice requirements within this code. Tower mounted personal wireless
facilities shall comply with the following additional requirements:
a. All property owners within one thousand feet (1,000') of all property lines of the site (or
lease boundary lines, if applicable) shall be notified of the public hearing by the city, by
mail, a minimum of Sixty (60) days before the scheduled public hearing. The applicant will
be required to provide the names of the property owners to the city.
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b. (2) Any required public notice signs, to be located on a proposed site, shall be required to
comply with the requirements for posting of a rezone/subdivision (minimum size of sign
face to be 4 feet wide by 4 feet high).
14. Restricted Areas:
a. a. Telecommunications towers in excess of thirty five feet (35') in height shall not be
permitted within the Willow Creek Road corridor. (Ord. 710, 1-14-2014)
b. b. Personal wireless facilities in excess of thirty five feet (35') in height and not contained
within a building shall not be permitted within the "restricted area for telecommunications
towers" as shown on exhibit A located at the end of this section. However, notwithstanding
the foregoing, personal wireless facilities may be allowed within the restricted area
provided they are camouflaged or concealed, not readily identifiable as such, and designed
to be aesthetically compatible with existing and proposed uses within the restricted area.
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11A-1-5 DEFINITIONS
Title 47 U.S. Code § 153 (24) Information service — The term "information service" means the
offering of a capability for generating, acquiring, storing, transforming, processing, retrieving,
utilizing, or making available information via telecommunications, and includes electronic
publishing, but does not include any use of any such capability for the management, control, or
operation of a telecommunications system or the management of a telecommunications service.
Title 47 U.S. Code § 153 (50) Telecommunications — The term "telecommunications" means
the transmission, between or among points specified by the user, of information of the user's
choosing, without change in the form or content of the information as sent and received.
Title 47 U.S. Code § 153 (53) Telecommunications service — The term "telecommunications
service" means the offering of telecommunications for a fee directly to the public, or to such
classes of users as to be effectively available directly to the public, regardless of the facilities used.
Essential Telecommunications. Facilities operated and maintained by public agencies that
support Public Safety Communications Systems, which provide wireless communications to law
enforcement, fire services, emergency medical services, and other public safety/service agencies.
These facilities are considered Essential Services. needed?
Antenna. Any exterior transmitting or receiving device mounted on a wireless facility that
radiates or captures electromagnetic waves, digital signals, analog signals, radio frequencies,
wireless telecommunications or other electromagnetic signals. This definition includes repeaters
as defined herein. Antennas shall include, but not be limited to, devices having active elements
extending in any direction, and directional beam -type arrays having elements carried by and
disposed from a generally horizontal boom that may be mounted up and rotated through a vertical
mast or tower interconnecting the boom and antenna support, all of which elements are deemed
to be part of the antenna.
Collocation. Placement or installation of wireless telecommunications equipment, including
antennas and related equipment, on an eligible and existing support structure or non -tower
supporting structure that already has an operating antenna attached to it.
**Transmission equipment. **Transmission equipment means any equipment that facilitates
transmission for wireless service, including, but not limited to, radio transceivers, antennas and
other equipment associated with and necessary to their operation, including coaxial or fiber-optic
cable, and regular and backup power supplies.
Equipment Building, Shelter or Cabinet. A cabinet or building used to house equipment used by
telecommunication providers at a facility. "
Facility" or "Facilities" or "Wircicss Facility" or "Wireless Facilitic5" In the context of
wireless, means any cable or other wire or line, antenna, radio, pipeline, pipes, duct, conduit,
converter, cabinet, pedestal, meter, tunnel, vault, equipment, drain, manhole, splice box, surface
location marker, pole, structure, utility, or other appurtenance, structure, property, or tangible
thing owned, leased, operated, or licensed by a Company to provide or aid in the provision of cable,
personal wireless, information service, or telecommunications services.
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Material modification. A material modification shall be defined as the replacement of a
telecommunications facility, any addition of equipment to a facility, an increase in the number of
antennas, a visible change in appearance, and any increase in the telecommunications facility
height or any expansion of the enclosed area in which the equipment buildings, cabinets, and all
items need for the facility are located. This definition is included as separate from but inclusive of a
substantial modification, being a reasonable person's interpretation of a "substantial
modification."
Personal wireless service facility. Personal wireless service facility means the same as defined in
47 U.S.C. § 332(c) (7) (C) (i), as may be amended. Personal wireless service facilities include the
structure, transmission equipment, accessory equipment and related improvements used, or
designed to be used, to provide wireless transmission of voice including but not limited to cellular
phone service;
Public right-of-way (PROW). PROW means any street, public way or right-of-way, now laid out or
dedicated, and the space on, above or below it, and all extensions thereof and additions thereto,
owned, operated and/or controlled by the City or subject to an easement owned by the City for
which construction and operation of a Personal Wireless Service Facility is within the authorized
scope of the City's easement, and any privately owned area within the City's jurisdiction which is
not yet, but is designated as, a proposed public place on a tentative subdivision map approved by
the City. Wireless, structure. With respect to wireless, a structure is a pole, tower, base station,
mast, or other building, whether or not installed or in use at a facility, that is used or to be used for
the provision of personal wireless service (whether on its own or commingled with other types of
services) or other such facilities as defined in 47 C.F.R. § 1.6002(m).
Significant gap in telecommunications coverage. As applied to the coverage of an
applicant's personal wireless telecommunications service, a significant gap in telecommunications
coverage is the ability to make or receive an outdoor call most of the time. Provided that neither
the Act nor case law construing it requires otherwise, the following guidelines shall be used to
identify such a significant gap:
(A) A significant gap may be demonstrated by In -Kind call testing, which may be augmented
by in frequency -specific signal strength measurements in decibel-milliwatts (dBm).
(B) The authority shall accept evidence of Drive Tests and/or CaII Tests conducted by a neutral
third -party RF Engineer hired and supervised by the City, but paid for by the applicant. Call Tests
shall consider the following:
(i) the number of calls conducted in the call test,
(ii) whether the calls were taken on multiple days, at various times, and under differing
weather and vehicular traffic conditions, and
(iii) whether calls could be successfully initiated, received and maintained in the area within
which a significant gap is claimed.
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Small Wireless Facilities (SWFs). A small wireless facility means the same as defined by the FCC
in 47 C.F.R. § 1.6002(1), as may be amended or superseded. For clarity, the definition summarizes
the conditions provided by the FCC:
(1) The facilities:
(A) Are mounted on structures 50 feet or less in height including their antennas as defined in §
1.1320(d); or
(B) Are mounted on structures no more than 10 percent taller than other adjacent structures;
or
(C) Do not extend existing structures on which they are located to a height of more than 50 feet
or by more than 10 percent, whichever is greater;
(2) Each antenna associated with the deployment, excluding associated antenna equipment (as
defined in the definition of antenna in § 1.1320(d)), is no more than three cubic feet in
volume; [Note: this could be defined much smaller in your city]
(3) All other wireless equipment associated with the structure, including the wireless equipment
associated with the antenna and any pre-existing associated equipment on the structure, is no
more than 28 cubic feet in volume; [Note: this could be defined much smaller in your city]
(4) The facilities do not require antenna structure registration under part 17 of this chapter;
(5) The facilities are not located on Tribal lands, as defined under 36 CFR 800.16(x); and
(6) The facilities do not result in human exposure to radio frequency radiation in excess of the
applicable safety standards specified in § 1.1307(b).
Support structure. In the context of wireless, a freestanding structure that is used for the purpose
of supporting an antenna or antenna array and that may consist of a monopole, a mast, a self-
supporting lattice tower, a guy -wire support tower; utility pole, or other similar structures. "Non -
tower supporting structure" or "Non -tower facility" This means any structure, whether or not built
for wireless communications purposes, that supports wireless transmission equipment under a
valid permit and which is not a tower.
TOWER: Any ground or roof mounted pole, spire, similar structure, or combination thereof, with a
"height", as defined in this chapter, in excess of fifteen feet (15'), including supporting lines, cables,
wires, braces, and masts, intended primarily for the purpose of mounting an antenna,
meteorological device, or similar apparatus above grade.
Tower. In the context of wireless, a tall structure, over 50 feet in height, that supports antennas
or antenna wires for wireless transmissions.
Wireless. Wireless means the transmission of an electromagnetic **radiation power through the
air without the use of a wire, using any frequencies from 0 MHz to 300,000 MHz.
"Monitoring of wireless facility" or "Monitoring of facility" - In the context of wireless, the
measurement and logging of peak and average RF-EMR exposure data at least once every 1/10th
of a second for a full 30-minutes, by the use of professional RF-EMR meters with current
certificates of calibration. The raw data from the 30-minute data log is to be entered into the
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public record so any third party can view, analyze and verify the data collected — from which one
could calculate the total, cumulative RF-EMR exposures from the site. The data logs would be
comprised of RF-EMR exposure values from all individual facilities, towers, antennas, repeaters
transmitting to the measurement site. Frequencies metered may range from 300 MHz to 300 GHz,
shall include all wireless frequencies emitted or suspected, Wireless, "facility height" or "antenna
height" - When referring to a wireless facility or antenna, the distance measured from the finished
grade of the parcel to the highest point on the wireless telecommunications facility, including the
base pad and any antenna or other structure.
WIRELESS COMMUNICATION FACILITY: Any unstaffcd facility thai irareinriko arr'; or receives
signals by electromagnetic or optitcl. r.-ri�-:c, including, without limitation, antennas,
m ave- ifcllitc d; s.r.iviZZr Jwil,:ctures supporting such equipment.
Wireless Telecommunications Facility (WTF): Any facility for that is designed and constructed
primarily for the purpose of supporting one or more antennas for telephone, radio and
similar telecommunication purposes, including for transmitting and/or receiving electromagnetic
waves for telecommunications, including, but not limited to, self-supporting lattice towers, guyed
towers, or monopole towers. The term includes, cellular telephone towers, repeaters, and
alternative tower structures. This term includes equipment, equipment buildings, parking area,
other accessory equipment, fiber, the structure and any support thereto. This definition includes
all personal wireless facilities, including Macro WTFs, CP-WTFs and DAS systems owned or
operated by a wireless provider or carrier and which are part of a commercial wireless system, or
are able to be used by the general public,
Close Proximity Wireless Telecommunications Facility (CP-WTF) A CP-WTF is a facility that
by design is capable of close proximity to the general public, or closer than traditionally allowed in
past decades. A CP-WTF includes all antennas or facilities attached to buildings. A CP-
WTF includes the definition of a small wireless facility by the FCC as described in 47 C.F.R. Section
1.6002, as may be amended. A CP-WTF includes any Micro Wireless Facility, meaning a wireless
telecommunications facility where it is not larger in dimension than 36" in length, 18" in width
and 12" in height, does not have an exterior antenna which is longer than 11 1/2", and is installed
directly onto existing overhead cables owned by providers.
MPE. Maximum permissible exposure to RF-EMR.
Personal wireless services. The term means the same as defined in 47 U.S.C. § 332(c) (7) (C) (i),
as may be amended. Personal wireless services include commercial mobile services, unlicensed
wireless services, and common carrier wireless exchange access services. Unlicensed service is
intended to mean use of duly authorized devices which do not require individual licenses, but does
not mean the provision of direct -to -home satellite services.
Radiation. In the context of wireless, radiation refers to electric and magnetic fields emitted from
frequencies ranging from 0 hertz through 300,000 MHz.
Radio Frequency (RF) Engineer. An engineer specializing in electric or microwave engineering,
especially the study of radio frequencies, who is a professional engineer registered to practice in
the state of Idaho.
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RF-EMR: pulsed, data -modulated, Radio -frequency Electromagnetic Microwave Radiation (RF-
EMR) from 300 MHz to 300,000 MHz. Radio Frequency-(fF) r. Ar. rrginecr specializing in
electric or microwave engineering, especially the study of radio frequencies, who is a professional
stered to pfactice in the -,ate of Ida-14-e.
H•P: Horizontal setback and maximum Effective Radiated Power (in Watts ERP)
specifications and data that identify the horizontal distance from the highest occupied floor of the
closest building to the location of the WTF antenna, as well as, the maximum Watts ERP output
from all frequencies from all WTF antennas, calculated as the sum of the product of each antenna
channel's maximum input power in Watts x the antenna Gain (dBi) for that respective channel.
Environmental Assessment (EA): NEPA requires the FCC to protect public and environmental
health through review that includes a public commenting process, but the FCC has delegated some
of its responsibilities to applicants and to the City. As stated in 47 CFR § 1.1307, an environmental
assessment must be prepared by applicants for actions that may have a significant environmental
effect. Details required by the FCC include, but are not limited to, critical analysis of effects on
endangered species or critical habitat; impacts on wetland resources, effects on potential or actual
sites listed on the National Register of Historic Places; impacts on Native American sites; and any
alternative sites that might be reasonably considered. An EA or an exemption for an EA may be
contested and sent to the FCC by the City or applicant for further review based on the FCC's NEPA
responsibilities. A resident may also contest the EA or EA exemption, although this will not halt the
process. If contested, public concerns and comments are to be included in the FCC review. If
alleging a significant impact in regard to an existing facility or proposed modification, whether an
EA was filed can be checked online via the FCC's Antenna Structure Registration (ASR) application
on environmental notice, at https://wireless2.fcc.gov/ASRManager/service/national Notice
Report.faces. If there is a current application, a request for further environmental review can be
selected by clicking "ASR Environmental Notice" at this link: https://wireless2.fcc.gov/U1sEntry/
pleadings/pleadingsT ype.jsp. If an application is not available online, then an email to
towercomments@fcc.gov can provide information on the facility, contact information, and EA
concerns.
National Environmental Policy Act (NEPA): NEPA is a federal law passed in 1970 that requires a
review process and informed decision -making to identify environmental and public health impacts
before a decision is made and construction begins. NEPA requires disclosure to the public, intake
of public comments, study of consequences, and proposed measures improve environmental and
public health. NEPA has three levels of review: Categorical Exclusions (CatExs), Environmental
Assessments, and Environmental Impact Statements, the latter completed by federal agencies.
Applicants for wireless facilities may be required to complete an environmental assessment.
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