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Sheldon Pine testified that the FCC's cell tower ruling that tower companies need to be granted access does not mean the access needs to be in the right-of-way. Granted access means you need to allow cell towers in your jurisdiction, but you have control over where the cell towers can be placed. You do not need to grant access in front of people's homes. Here is a link to what he said:
This is my transcript of Sheldon L. Pine’s testimony on March 4th, 2019 to the City of Gaithersburg. In summary, he states that the United States Court of Appeals for the Fourth Circuit, Maryland’s court, allows jurisdictions to reject cell towers in the utility right-of-way as long as cell towers are allowed in other places.
My name is Sheldon Pine. I resided … in our city [City of Gaithersburg]
I'll preface this by saying I'm a 1981 graduate of Yale Law School and clerked for the 11th Circuit Court of Appeals and a practiced regulatory law for 35 years since graduating from law school. That's a preface to say I want to talk about the cell tower regulations. I want to take a few valuable seconds to thank [City Attorney] Lynn [Board], [Deputy City Attorney] Frank [Johnson] and [Deputy City Manager] Dennis [Enslinger] because I think they've done an extraordinary job with a very complex subject and had produced very nuanced and very complex regulations. There's been a lot of contest about what the regulations should say and a whole variety of subject matters. I gave a written statement which is five single spaced pages this deal strictly with the law. I don't have enough time to talk about that but I want to make three quick legal points and I'm broadly supportive of the regulations as proposed. First, the zoning power really is the power to preserve the character of the community [with] concomitant obligation to heed the wishes of the community. That's what we're talking about when we talk about zoning. It's a quintessential power of local government as the Supreme Court said the power to zone and control land use is undoubtedly broad and it's proper exercise and this is an essential aspect of achieving a satisfactory quality of life in both urban and rural communities. That's a famous zoning case called Mount Schad.
Specifically as the second point, I'd like to make relating to the cell tower zoning issue. It's definitely the law of the United States Court of Appeals for the 4th Circuit which governments Maryland and the contiguous state. Definitely, the law that preserving the character of the community and heeding the legitimate wishes of the community with respect to the location of zoning cell towers are legitimate aspects of the zoning process. In addition to being core zoning values nothing in any FCC regulation short of an action by the city that actually totally prohibits cell tower servers can override the power of the city to zone. And finally and that's further to amplify this point. I mean we see this in the controversy over the regulations with two of the cell tower companies. Contrary to what they've said refusing to allow the placement of cell towers in a way that maximizes cell tower company returns and minimizes their costs which is what they want is not an effective prohibition of service a violation of what would only occur if there is an actual, actual prohibition of service and effective prohibition of all service where a community is already served. There are three recent fourth circuit court of appeals cases that hold that and nothing has changed that piece of the law.
Link to the 5 pages of written testimony Sheldon Pine references in his aural testimony.
https://drive.google.com/file/d/1DP24e_e4pqY2m_YVzy7P9VyUDI8uLqEX/view?usp=sharing
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