Rebuttal Rockville Hearing

Private right of way:

1) Issue: not true that jurisdictions are prohibited from enforcing FCC standards (administrative law)

Solution/evidence: the Sept. 9, 2018 FCC order 18-133 is not a federal regulation. Under federal administrative law, it is a type called an "interpretive ruling", and it is not binding. See this definition of interpretive ruling and attached explanation by an administrative law attorney and a telecommunications attorney.

2) Issue: complete lack of insurance, both pollution insurance and general liability by third party independent insurers

Solution/evidence: Add language for the permit application to require proof of general liability insurance that does not have a pollution exclusion. See attachment for detailed language.

3) Issue: Gaithersburg requires all small cell supporting equipment ("equipment cabinet") apart from the antenna to be underground. Rockville staff stated this is not possible in Rockville because the equipment blocks the sidewalk - but the proposal is for the equipment to be underground, not at ground level.

Solution/evidence: (1) Implement Monique's request to speak with Gaithersburg council members, and to get their first hand experience; (2) mocoSafeG to provide a photo of a Gaithersburg underground installation, and (3) Rockville Pike, which has wide sidewalks, should be adequate; and (4) Sandy to send picture of an equipment box as large as a little girl. Note that these cabinets also emit noise 24 hours a day.

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4) Issue: Staff attorneys are uninformed about this area of extensive telecommunications law. They are misinforming the Council as a result.

Solution/evidence: This link is to a national telecommunications experts webinar discussing many key points on how jurisdictions can protect themselves. City Council members should request that the staff attorneys watch this 2 1/2 hour presentation to learn the most protective measures for Rockville.

5) Issue: Staff has developed the legislative briefing materials with no interaction with citizens who have spent years researching these issues, and testified before the City Council, but staff has met with the telecommunications representatives.

Solution/evidence: City Council will direct the staff attorneys and planning department staff to collaborate with these citizens on implementing the Council's concerns.

6) Issue: Staff incorrectly stated to the Council that local jurisdictions are "wholely preempted" from enforcing FCC radiation levels.

Solution/evidence: (1) The Telecommunications Act of 1996 covers location and construction, but does not cover operation of the wireless infrastructure after construction. Direct staff attorneys to produce the legal basis for their statement. (2) According to that Act, if a wireless structure is found in violation of FCC standards, the Act no longer prohibits local governments from regulating radiofrequency emissions pf that facility. (3) Three jurisdictions (Davis, Burbank, and Berkeley CA) already have laws with local enforcement of FCC standards, such as requiring independent third party verification of periodic, random radiation tests at the operator's expense.

7) Issue: Staff inferred that citizen testimony citing advice from national telecommunications litigator Joseph Van Eaton, was satisfied by simply noting that Montgomery County is represented by Mr. Eaton in the 9th Circuit Court case. Staff did not address the substantive issue raised by the citizen's testimony, that Mr. Van Eaton recommended local jurisdictions should not pass enabling zoning until that case is resolved.

Solution/evidence: (1) City Council should seek advice from counsel specifically proficient in local telecommunications ordinances and zoning, to ensure maximum policing power and authority for Rockville.

8) Issue: Councilmembers mis-stated that the County-level residential small cell bill died in the previous County Council session.

Solution/evidence: The bill was re-introduced in the current session as ZTA 19-07, and had a major hearing with 40 people and several organizations testifying against the bill. Massive continued citizen opposition has resulted in the bill not having had enough support to be brought for a vote, and was withdrawn from PHED committee voting schedule.

Public right of way:

9) Issue: why can't Rockville have 60' setback for public right of way, if Montgomery County's proposed regulation has a 60' setback for public right of way? Staff did not complete their GIS survey, did not present the survey done so far to the Council, and they did not share the basis for their conclusion of "complete prohibition" under the FCC regulations.

Solution/evidence: Direct the staff to complete the GIS survey showing all areas in Rockville where the antennas in public rights of way would be less than 60 feet from any residence, send it to the Council, make it available to the public, and provide the staff's basis for interpreting "complete prohibition".

Additional proposal:

10) Local jurisdictions can implement a two-part permitting procedure: (1) a wireless company has to prove either a "significant gap in coverage" with raw data as evidence of the gap, or "capacity deficiency" with real records of dropped calls; (2) the evidence must be provided with the application; and (3) the proposed location is the least intrusive place to put a tower structure and there is no alternative.

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http://rockvillemd.granicus.com/MediaPlayer.php?view_id=2&clip_id=4175

Community forum
(when we got to speak) started at 1:46:47 in the video.

Every speaker was against small cells.

Council discussion and questions on small cell facilities starts at 2:52:23. And that's when the staff said a bunch of untrue stuff.

2:53:09. Staff member insists city is expressly prohibited from regulating RF in any way. I think his name was Jim Wasilak, but it's really hard to read his name tag.

2:53:09. Councilmember Mark Pierzchala asks a question to try to address our concerns about enforcement of FCC standards.

Marlaine A. White, esq (assistant city attorney) answers earlier part of Mark's question

3:01:14, she says the FCC order stands (does not tell them it's a non-binding ruling and not an actual law)

3:03:03 Mark Pierzchala repeats question about enforcement of FCC standards

3:03:41 Marlaine A. White insists city can't enforce FCC standards. No. It falls on the local jurisdiction to enforce the FCC standards.

Also, they appear to have lost my written testimony, although I did get it in before the 2pm deadline that day.

3:04:40 Mark Pierzchala tries to insist that enforcing FCC standards is different from setting Rockville's own standards.

3:04:57 Marlaine A. White falsely claims we have to rely on telecommunications industry representations and that Rockville can't enforce FCC standards. She suggests citizens report them to the FCC.

3:07:49 Councilmember Monique Ashton asks about the insurance issue we raised

3:09:00 Marlaine A. White comes back after having technical difficulties, and resumes replying to Mark Pierzchala. Says we are "wholly preempted" from exercising any authority over rf and health standards. She says citizens can report a provider in violation to the FCC but otherwise we can't do anything. She says we have no mechanism for enforcing FCC stands because of the preemption.

3:09:50 Councilmember seems convinced by Marlaine White.

3:10:14 Monique Ashton repeats question about whether we can require the insurance.

3:10:32 Marlaine A. White wants to defer to city risk management.

3:11:09 Craig says we don't require liability insurance for small cell providers in the right of way. Downplays risk to city because the small cells are on poles not owned by the city. Says there's not a lot of liability there if something goes wrong.

3:12:04 Monique Ashton asks about undergrounding of cell equipment and whether Gaithersburg requires that.

3:12:48 Jim Wasilak clarifies it's not undergrounding the tower itself, but the associated equipment. Rockville will in some cases require undergrounding of the associated equipment, but only in places where utilities are currently undergrounded.

3:13:24: Monique Ashton "So essentially we don't require them to be undergrounded if all the other utilities are not."

3:14:12 Marlaine A. White hesitant to mirror Gaithersburg. Claims we have to treat small cells the same as other utilities are treated. Recent court rulings allow some differences.

3:15:37 Mayor Bridget Donnell Newton wants all new utilities including small cells to be undergrounded.