Prohibition II -- Using Effective Prohibition v Telcoms

Even though FCC 18–133 Section 332(C)(7)(B)(i)(II) mandates that local governments cannot prohibit the provision of wireless services, the meaning this has already been defined by Federal Circuit Courts Maryland is in the 4th. The FCC doesn't have the authority to overrule court decisions.

Local siting authorities are not bound by it, nor does it bind a federal district court hearing a challenge to a local decision on an application. It is merely an interpretation –– and a persuasive rather than a binding authority.

Four lawyers explain why the rules of Effective Prohibition have not changed and how they can be used
how to use "Effective Prohibition" to keep small cell towers out of your neighborhood

More comments on effective prohibition and why FCC cannot change the rules
Why FCC presented a false claim:
https://wireamerica.org/ninth-circuit-case-re-fcc-18-133/

What does not apply and bind any particular local siting authority or a federal district court is the precedent established by the circuit court of appeals that presides over the area. Maryland is bound by U.S. Court of Appeals, Fourth Circuit rulings. The 4th Circuit will decide whether its current prohibition test is the same or different than a new FCC test –– and if different, whether to now agree with the FCC and change the applicable test.

Meanwhile, the precedent for Maryland to follow is found in New Cingular Wireless v. Fairfax (excerpts attached) –– which in turn relied on T-Mobile v Newport News. In the former case, these two standards were established for effective prohibition for the plaintiff:

(1) must show a legally cognizable deficit in coverage amounting to an effective absence of coverage, and

(2) must show that it lacks reasonable alternative sites to provide coverage

The verbiage used in Monday night’s testimonies regarding a wireless company's burden to assert a claim against local government (re “significant gap in coverage” in coverage and “least intrusive means”) remains relevant. The need for these above two provisions in the City of Rockville's TXT2019-00251 cannot be over-emphasized, but doesn’t negate the need for other provisions in a local government’s WTF ordinance -– including, but not limited to

–– protection insurance (that includes EMFs) as a condition of as master license agreement for deployment of technology,

–– both (random) testing and deputization of the citizens to test –– at the owner’s expense,

–– expressed forbidding of the increase of power output at any time and by any means,

–– citing of general population limits (versus occupational exposure limits),

–– scrutiny of the minimum distance factor,

–– implementation of adequate fallback distances,

-– revocation provisions for routine perjury committed in false and misrepresentative application statements and maps,

–– ADA and FHAA accommodations for the already disabled and medically-compromised,

–– advance and trackable notification to citizens of proposed WTF installations with photographically-documented signage of same.

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ALSO, please view this video –– Verizon: Millimeter Waves Go 3,000 Feet

CONCLUSION –– given the video evidence -–

There is no need to install Close Proximity Microwave Radiation 4G/5G Antenna Wireless Telecommunications Facilities (CPMRA-WTFs) on utility/light poles.

The least intrusive means to close a significant gap in coverage is for wireless companies to collocate 4G/5G antennas on macro towers.

NEXT STEPS ––

–– Update your City code provisions so that wireless companies must prove a the least intrusive means to close a significant gap*** in coverage –– with no alternative.

–– Because there is no need to install Close Proximity Microwave Radiation 4G/5G Antenna Wireless Telecommunications Facilities (CPMRA-WTFs) on utility/light poles, then the least intrusive means is for wireless companies to collocate 4G/5G antennas on macro towers. Update your City code to ONLY allow WTFs in commercial and industrial zones –– and NEVER in residential zones.

–– Establish a 2,500 foot setback from any WTF antennas to residences.

*** excludes "future capacity" or to “improve coverage"