Antenna zoning: broadcast, cellular & mobile radio, wireless Internet: laws, permits & leases [Professional ed] 0240811127, 9780240811123, 9780080928296

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Antenna Zoning Broadcast, Cellular & Mobile Radio, Wireless Internet—Laws, Permits & Leases Professional Edition

Fred Hopengarten

AMSTERDAM • BOSTON • HEIDELBERG • LONDON NEW YORK • OXFORD • PARIS • SAN DIEGO SAN FRANCISCO • SINGAPORE • SYDNEY • TOKYO Focal Press is an imprint of Elsevier

Focal Press is an imprint of Elsevier 30 Corporate Drive, Suite 400, Burlington, MA 01803, USA Linacre House, Jordan Hill, Oxford OX2 8DP, UK © 2009 Fred Hopengarten. Published by Elsevier Inc. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. Permissions may be sought directly from Elsevier’s Science & Technology Rights Department in Oxford, UK: phone: (⫹44) 1865 843830, fax: (⫹44) 1865 853333, E-mail: [email protected]. You may also complete your request online via the Elsevier homepage (http://elsevier.com), by selecting “Support & Contact” then “Copyright and Permission” and then “Obtaining Permissions.” Library of Congress Cataloging-in-Publication Data Hopengarten, Fred. Antenna zoning : broadcast, cellular & mobile radio, wireless internet—laws, permits & leases / Fred Hopengarten. p. cm. Includes bibliographical references and index. ISBN 978-0-240-81112-3 (case bound : alk. paper) 1. Antenna zoning—Law and legislation— United States. 2. Radio and television towers—Law and legislation—United States. 3. Earth stations (Satellite telecommunication)—Law and legislation—United States. 4. Building permits—United States. I. Title. KF5700.5.A58H67 2009 343.7309⬘94—dc22 2009002970 British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: 978-0-240-81112-3 For information on all Focal Press publications visit our website at www.elsevier.com Typeset by A Macmillan Publishing Solutions. (www.macmillansolutions.com) 09 10 11

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Printed in the United States of America

Table of Contents Introduction ...................................................................................................................iv Acknowledgments ...........................................................................................................vi About the Author ..........................................................................................................vii Chapter 1: Principles That Will Help You Win ................................................................... 1 Chapter 2: The Process in a Nutshell................................................................................. 9 Chapter 3: Your Winning Team ...................................................................................... 25 Chapter 4: Basic Preparations........................................................................................ 43 Chapter 5: Getting to Know the Players .......................................................................... 57 Chapter 6: Selected Applicable Law ................................................................................ 79 Chapter 7: Possible Objections—Safety Issues ............................................................... 131 Chapter 8: Possible Objections—Aesthetic, Noise, and Nuisance Issues ............................ 181 Chapter 9: Possible Objections—Environmental Issues ................................................... 211 Chapter 10: Possible Objections—Diversionary Tactics .................................................. 231 Chapter 11: The Permit Application ............................................................................. 249 Chapter 12: The Public Hearing—Your Big Moment in the Spotlight................................ 261 Chapter 13: Deliberations and Decisions ....................................................................... 287 Chapter 14: Appeals ................................................................................................... 291 Chapter 15: Lawsuits .................................................................................................. 295 Chapter 16: Now Get the Permit and Build Your Antenna System!................................... 305 Chapter 17: Awkward Post-Permit Situations ................................................................ 319 Chapter 18: Post-Construction Issues ............................................................................ 347 Chapter 19: Lease Issues ............................................................................................. 355 Chapter 20: Drafting or Redrafting a Bylaw, or State Statute ......................................... 399 Bibliography ............................................................................................................... 417 Index ......................................................................................................................... 425 iii

Introduction Why This Book was Written There is a tower across town, or on the next block, or down the street. Perhaps it went up many years ago. It may not even have needed a permit. There are several facts you may not have considered—perhaps legal facts, perhaps physical facts and demographic facts, perhaps ugly, but nonetheless real, facts.

Legal Facts Since that antenna system was erected, the town bylaws or ordinances may have changed. Since the passage of the Communications Act of 1996, towns all over the United States have aggressively been changing their bylaws or ordinances. Don’t think they’ve changed the bylaws or ordinances? Check out Kleinhaus et al. v. Cortlandt, S.Ct. N.Y., County of Westchester, Index No. 19396/95 (Lefkowitz, J.), March 18, 1996. Kleinhaus, an 1 amateur radio operator, contracted to purchase a residence in the Town of Cortlandt in 1993 at a time when the town’s Zoning Code had no height restriction applicable to freestanding antennas. After the Purchase and Sale Agreement was signed, but prior to completion of the purchase, the town amended its zoning laws to provide that in an R-40 (residential-40,000 square feet minimum) zone the maximum height allowed for structures is 35 feet. Kleinhaus was eventually successful when the Court found “that some of the ZBA’s [Zoning Board of Appeals] findings are not supported by the evidence.” The ZBA’s determination to decline a variance was “annulled as irrational, arbitrary and capricious.” The court remanded the matter to the ZBA for further proceedings, and the parties were able to work out a compromise. Kleinhaus got permission to erect a 100-foot tower. However, this whole process cost the town and the applicant a lot of money—a lot of money. The taxpayers of Cortlandt were not well served by the inability of their representatives to compromise earlier. The purpose of mentioning this specific case is to show that even smart applicants with small projects can get caught up in undesirable situations when a town changes the bylaws before they move in. It could also happen to you after you’ve completed the purchase or rental of a parcel and before you get around to applying for a permit. The details of the process are covered in this book. After I wrote Antenna Zoning for the Radio Amateur, the wise and encouraging general counsel of the Society of Broadcast Engineers, Chris Imlay, Esq., told me that the professionals could use some tips too. He too had noticed that the Communications Act of 1996 had resulted in huge changes in local zoning for commercial antenna systems, with ever-increasing challenges.

1

Don’t get excited. This book is not about commercial antenna zoning. The case just proves these things do happen.

iv

Introduction

Physical and Demographic Facts Towns that were once 20 miles from downtown and considered rural may have been built out. Today they may be considered suburban. Where once you had a rougher breed of townsman who felt that what you do on your land is your own business, you may now have a newer breed who uses phrases such as view shed to argue that his or her mere ability to see something you are doing on your land is an environmental concern. In my own town we have people who moved into homes at the end of a major runway for an Air Force Base and local airport, and now find themselves like Captain Louis Renault in the film Casablanca, who was “shocked, shocked” to discover that there was gambling going on at Rick’s Cafe. These folks are surprised to discover that overhead there are airplanes taking off and coming in for landings. Imagine that. This new breed favors more government intrusion into property rights. Without venturing a guess as to why, it is still possible to observe that such folks are more common in high-income suburbs than rural exurbs. So, as a town becomes more developed, expect tougher bylaws or ordinances.

Ugly, but Nonetheless Real, Facts It is most saddening to report that America is still not free of pride and prejudice. I was once a lawyer in a case where a well-established amateur radio operator, a descendant of President John Quincy Adams with an existing 120-foot tower, confided that the applicant for a 100-foot tower in the same town would never have had as much trouble if the ham newer to the town (in the words of this Brahmin) “had a numeral” after his name. For this reason, bylaws or ordinances that are designed to give a lot of control to neighbors (think of such bylaws as equivalent to a neighborhood veto) are far more dangerous to someone who is a minority in town than to someone who represents the majority group in town and goes to the “right” church. Similarly, I’ve been involved several times in a city where it appeared that native Spanish speakers sometimes got short shrift in that city’s Building Department. You may not like it. I certainly don’t like it. But, if you don’t have acres and acres of buffer, with lots of trees to protect neighbors from the sight of your antennas, and if your plan calls for going above the tree line, think long and hard about how you can approach the town and accomplish your purpose, despite your minority status. If you’ve never experienced prejudice, you are lucky. Once you have, you’ll understand more about the intersection of law and politics at the town hearing level. So, dear reader, it is not your imagination. It is more difficult to get an antenna permit today than it was in former times. I have written this book to try to give you a guide on how to navigate the difficult and dangerous shoals of getting an antenna permit in today’s contentious and sometimes litigious environment.

v

Acknowledgments I thank my clients—the best teachers a lawyer could ever want for learning his craft, because they keep asking the hard questions. Sometimes those questions were asked out of fear and sometimes out of wisdom. But they were always great questions. Fearing that many clients will feel left out, I most especially want to thank Bob Vinikoor (Koor Communications), as well as Bob Hess and Bob Yankowitz (both of CBS) for teaching me a lot about the broadcast world. A well-deserved thank you as well to each of those who made this book possible: Chris Imlay, Esq., General Counsel to the Society of Broadcast Engineers, and to the people who helped assemble the book: Dean Straw N6BV, Jim Cain K1TN Christopher C. Ercoli (Union College ‘06), Annie Hopengarten (Colby College ‘06), as well as Eric Schumacher-Rasmussen (an editor with an ordered mind). I would be remiss if I did not thank my mother and father, who paid for nine years of higher education for which I will forever be grateful. The gift of an education is truly one of those gifts that keeps on giving. Thanks, Colby; thanks, Boston College; thanks, Harvard. But, most of all, thanks, Mom and Dad. And a big thank you to my children, Annie and Steven, of whom I could not be prouder. Finally, here’s the answer to my wife Betty’s question: This book is the product of what I was doing in front of my computer all that time! I was not just collecting Internet humor. ;-) See? I was doing something useful after all. When the weather gets a little nicer, I’ll get to work on cleaning out the garage, as you’ve asked.

About the Author Since 1990, Fred Hopengarten has acted as a consultant to venture capital firms on communications investments and as a lawyer in communications law matters—especially those involving land use for dishes and towers. In addition, he founded Strong Signals LLC, a Maine company, to own and operate a major communications tower and site near Lewiston-Auburn. From 1978 to 1989, Hopengarten was President of Channel One, based in Newton, MA, a company providing equipment and installation services for home and commercial satellite earth stations, as well as temporary downlinks for ad hoc networks. He installed over 100 downlinks and 15 towers, obtaining building and zoning permits, buying hardware, and climbing towers to erect antennas. Beginning as a startup, the company grew to operate cable TV systems passing 13,000 homes. The company was sold and its cable TV systems are now part of Comcast. Hopengarten has published articles on various aspects of satellite and cable television services, as well as antenna zoning matters, in Communications–Engineering Digest, ComputerWorld, Dealerscope, Pay Television, Inside SPACE, Satellite Communications, Radio-Electronics, Cable Television Business, CableVision, Cable Marketing, Broadcasting, Cable Television Business, the New England Real Estate Journal, and Radio World Engineering Extra. He has published amateur radio antenna articles in 73, CQ, National Contest Journal, DX Magazine, QST (with R. Dean Straw), and The ARRL Antenna Book (with Straw). He is the author of Antenna Zoning for the Radio Amateur, published by the ARRL (the national association for amateur radio). A frequent speaker at technical and trade events, Hopengarten has been a guest speaker for the Electronic Industries Association, the Satellite Communications Users’ Conference, Online Systems, Payment Systems, Massachusetts Institute of Technology, Boston University Law School, Boston College Law School, Resource Management Consultants, the Dayton HamVention, the National Association of Broadcasters, the Society of Broadcast Engineers Ennes Workshops, and others. He has been interviewed frequently for articles, as well as for TV and radio shows, satellite television, mini-cable systems, and satellite teleconferencing. He has worked as a consultant to various companies and investors with an interest in the field. Oh yes, he’s a lawyer who actually devotes most of his professional time to antenna leasing and zoning matters. Hopengarten is a graduate of Colby College (A.B., economics, Class of ’67), Waterville, ME, where he lettered in tennis and was also the chief engineer of the college radio station, WMHB. While creating Channel One, he taught, as an Associate Professor, courses in Business Law and Marketing for one semester at Colby. He received his J.D. from the Boston College Law School (Class of ’70). He is a member of the Bar in the District of Columbia (where he was law clerk to the chairman of the Federal Trade Commission) and in Maine. He is also a graduate of the Harvard Business School (M.B.A., Class of ’72). Hopengarten has held an amateur radio Extra Class license since 1975, as K1VR. He received his first FCC license in 1956, as WN1NJL. In 1993, he wrote the user’s manual accompanying CT, a software program for ham radio contesting that is the most popular such program in the world (over 30,000 users). He serves as a volunteer counsel for the American Radio Relay League, working mainly on zoning matters, and is a member of the Radio Club of America. Hopengarten is married to Betty E. Herr, M.D., Ph.D., a physician and medical director of a private group practice of psychiatry affiliated with St. Elizabeth’s Medical Center, Boston. The Hopengartens live in Lincoln, MA. They have a daughter, Annie, and a son, Steven, who are just terrific. vii

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C HA P TER 1

Principles That Will Help You Win

You are about to embark on a process that will have its ups and downs. There are, however, some certainties. The first certainty is that you will run into some predictable questions, to which there are good answers. The second certainty is that your luck will dramatically improve with preparation, but you knew that. The third certainty is that you can benefit from the efforts of those who have gone before you, if you choose to pay attention and learn from their mistakes. Remember the aphorism: Stupid people never learn. Smart people learn from their own mistakes. Brilliant people learn from the mistakes of others.

1.1 Commit Yourself to Win If you are willing to work hard and prepare, learning from the mistakes of others, you will achieve several things: ●

You will find that your early steps aren’t as bumpy as you might have feared.

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You will dramatically reduce the cost of legal assistance, should you choose to retain a lawyer.

●

●

●

You will put on a presentation that gives you the greatest chance of achieving the permit for the project you propose. Should you be denied after the initial hearing, heaven forbid, you will increase your chances of succeeding on appeal. You should understand that it is common for zoning bylaws or ordinances to include a clause that prevents you from reapplying for a year, sometimes two, if you are turned down. So, if you are not well prepared, you may introduce up to a two-year delay in your project.

Some Zoning Boards like to think of themselves as “just your neighbors.” They may encourage you to “come on down and tell your story.” Unfortunately, while they may indeed be well-meaning, civic-minded volunteers, they may not understand what you intend to do. They may also consider themselves to be “protectors of the town.”

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Chapter 1

Always remember that this is a complex matter and that it involves both technical and legal issues that may be new to the Board. Be careful. Here are some thoughts you should banish from your mind: ●

●

This application process is silly, and it could take longer to get the permit than it will to erect the tower. (Yes, this is true, but depressing. If you dwell on it, you’ll never get going.) This process is expensive and it could cost more than the structure and antennas. (Banish this thought from your mind as well, because it could also be true, especially at lower heights, and because this thought is also depressing.) Besides, investing in the process may be your only way to get that antenna up at all. There have been many examples of people who have succeeded in erecting good antenna systems almost exclusively because they conveyed the sense that they were committed to winning (and it showed in their preparation). As a result, Boards and neighbors decided that working with the applicant was a more fruitful strategy than what has become known as the Nancy Reagan posture: “Just say no.”

Here is an example. Let’s say you let it slip during a conversation with the Building Inspector or a neighbor that you really want to work something out here because you have only a limited amount of money to spend. You are really telegraphing to the Board that they can walk all over you, because you can’t afford to take this case to the next level. I’d much rather say: “My company is prepared to spend whatever it takes to see this project through to completion.” (Never hesitate to repeat the phrase “whatever it takes.”) People should understand that you are really, really determined. Prepare yourself mentally to win. As you gear up for this challenge, recall the words of Winston Churchill, who said, referring to World War I: “In war: resolution. In defeat: defiance. In victory: magnanimity. In peace: goodwill.”

1.2 Build Your Winning Team Not only must you prepare yourself for the project but you must also assemble your team. Depending on your situation, you may have to brief your associates, other antenna owners in town, neighbors, and a team of “experts,” as well. Who are those experts? Before this is over, you may need a lawyer, a friend who is really good with a computer word-processing program and a scanner (or a professional secretary), a surveyor, a registered professional engineer, an insurance agent, a real estate agent, an appraiser, a banker, and—usually at the last minute—a printer. Start thinking about whom you’ll ask to be on your team now. It can be difficult to get those folks organized the night before a public hearing, because your emergency is not necessarily their emergency, and sometimes they need clearance from senior management to help you—or at least to help you in a hurry.

1.3 Always Wear the White Hat Conceptually, you should be thinking about how to wear the white hat at all times. This reference comes from the old cowboy movies. You could always tell the bad guys—they wore black hats. The heroes always wore white hats.

Principles That Will Help You Win 3

1.3.1 So Who Wears a White Hat? ●

Good citizens who have prepared a permit application that complies with the bylaw or ordinance (or meets standards even better than those specified in the bylaw or ordinance)

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Public-spirited citizens who stand ready in times of natural disaster

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Businesses that show consideration for the interests and concerns of neighbors

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Applicants who have consulted with neighbors before showing up at the hearing

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Careful people who are going to build something that won’t hurt anyone

1.3.2 And Who Wears a Black Hat? ●

Applicants who come in shouting, “I own this land. I have rights!”

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Applicants who haven’t really figured out what they are asking of the Board

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Applicants who haven’t consulted with their neighbors

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Applicants who haven’t thought their plans through very carefully

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Applicants who give off the impression that they are haphazard people who are really capable of building something dangerous

1.4 Commit to a Policy of Full Disclosure When preparing your permit application, you may be tempted to gloss over some detail. Perhaps it is a tiny detail. Perhaps you want to skip over something because you really haven’t made up your mind. Attempting to hide something at the hearing is a bad idea. It is not what the wearer of the white hat would do. Following are two examples of issues that can become an embarrassment during a public hearing if they are not disclosed in permit applications. There is no need to fall into this trap. The disclosure may not look good, but there is usually a convincing explanation for the issue. There is, however, never a good explanation for not disclosing some things in the first place. As your application will likely receive close scrutiny, you will get caught. Here’s the basic rule: Spell it out and then explain it away: ●

Disclose who really owns the property and assure the Board you have permission to build. If, for some reason, the land is in the name of your wife, a real estate trust, a relative, a landlord, and so forth, include that information, together with some sort of affirmative statement that you are applying with the permission and good wishes of the owner and a letter from the true owner that authorizes you to act and appear as an agent of the landlord, wishing you well. You are the real party in interest. Don’t let the Board get hung up on who owns the property, causing a delay to the next meeting until you show up with that necessary permission. (Yes, this book has a sample of such a letter.)

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Chapter 1 ●

Disclose all distances. All distances. Sooner or later, someone is going to ask. The truth is that if you build according to the building code your antenna won’t fall over on top of neighbors and injure those neighbors. You are far, far better off if you say: “Please refer to Exhibit __, on page __, where you’ll see that the distance to the property line is __ feet.” That is decidedly preferable to being asked to come back in two weeks, or next month, with the dimensions requested. So, be sure to show the distances from every part of your equipment shed/ transmitter building to the property line, from the proposed tower to various property lines, and from the tower to adjacent homes or detached garages! (You can do this on the plot plan or on a chart that you insert in the supplement to the application.) Also, measure the distance to the overhead electrical power line. I’ve seen many hearings held over until the applicant provided a plot plan, with dimensions that made sense.

One last tip for situations on small plots (which may be, for this purpose, defined as an acre or less): Think about and learn the footprint of any tower you’ve thought of erecting. I was once involved in erecting a triangular, self-supporting Sabre tower that was 19 feet on a face at the base (and 5 feet on a face at the top). The tower was a triangle, but the surrounding fence was a rectangle. So, the orientation of the tower on the property made a difference as to the distance between the nearest leg and the fence. Although this was a self-supporting tower, the issue is also present for guyed towers. Figure 1.1 shows why a guyed tower requires a triangular area of land; Figure 1.2 shows what happens when you are forced to make the tower’s guying system fit into a rectangular parcel. Frankly, the best way to orient a tower is to draw the parcel on graph paper and move a scaled triangle-shaped piece of paper around until everything fits. You need to know those things. The applicant should be the master of the facts.

Why a tower needs a triangle of land area Guy anchor

Guy wire

Tower

Guy wire Guy wire Guy anchor

Guy anchor

Figure 1.1 Illustration showing why a tower with guys in three directions, 120° apart, requires a triangular area of land.

Principles That Will Help You Win 5 Why tower orientation makes a difference

冪 3 ⫽ 1.732

2

2

Line designating setback or required yard

Fails setback requirement (or required yard) 2 (A)

2

2

冪 3 ⫽ 1.732

Passes setback requirement (or required yard)

2

(B) A guyed tower presents a land requirement equal to an equilateral triangle. Guy wires radiate every 120⬚ (3 guys ⫽ 360⬚) Oriented as in (A) — You have a problem Oriented as in (B) — No problem

Figure 1.2 The orientation of a guyed tower can make the difference between fitting the guy sets and anchors within a zoning setback requirement or required yard and failing to meet that dimensional requirement.

1.5 Preparation is Everything The classic expression is apt: “If you don’t know where you’re going, any road will take you there.” This means you must know what you want, know what you need (note the distinction between what you want and what you need, and remember to apply it to a neighbor who objects), and how you intend to accomplish it. After you have made those decisions, many of the steps involved fall out easily.

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Chapter 1

1.5.1 Know Exactly What You Want If you are vague on your desires, many decisions become difficult. Here’s what I suggest as an example of a level of specificity for your goal: I Want: 130 feet of Rohn model 55G, with Phillystran guys at three levels. I Need: 121 feet, comprised of 110 feet of sections (by the way, check for the possibility of overlap with the tower you intend to erect—11 10-foot sections of Rohn model 25G are not 110 feet; they are less) with guys at three levels and 11 feet of FM repeater whip above the top. Now you can create a model of your plot and move the structure around until it fits. Discover the several places it fits, as there may be more than one spot. The manual way to discover the best place for the structure is to create a drawing of your plot on graph paper, to scale. Add in the buildings on the land (house, garage, shed, etc.). Add the setbacks required by your town. You now have what is commonly called the “building envelope.” Using the same scale, cut out a triangle equivalent to the space occupied by a structure with three directions for guy wires. Now you can move that triangle around until you find sites that fit. The more modern method is to use a computer to do your layout. I’ll talk about that later in the book.

1.5.2 Know the Process Before you submit your application, you must learn the process. Now, you may be one of those exceptionally lucky individuals who live—or move—someplace that has no regulations on antenna structures. Or, you may live in a town where you may by right put up a system that is, say, less than 120 feet high. On the other hand, you are probably reading this book because you are not one of those fortunate people. You must learn how to navigate through the shoal waters of your own town’s regulations, codes, ordinances, or bylaws (and, by the way, learn what to call them!). This can be tricky, because every town or city runs things a bit differently. In general, your process will involve some sort of public hearing held before a Planning Board, Zoning Board, or perhaps a Zoning Board of Appeals/Board of Zoning Appeals/Zoning Board of Adjustment. Different towns have different names for these bodies. Whatever the body is called, the hearings you will probably run into are open, public meetings. This is true everywhere in the United States. So, even before you’ve begun to assemble your own application, find out when your Board meets and attend at least two meetings. If your town is small and only a small number of people are in the room, you may be asked: “Is there anything we can do for you?” Don’t be a fool and blurt out: “Yeah, I’m here to find out how to put up a tower.” The local reporter could mention this in the weekly newspaper (“Tall tower coming!”), or it could hit the local rumor mill and put the neighbors on alert. Nothing good will come of it. Some people who hear the news will immediately assume that what you are going to propose to build is commercial, very big, very dangerous, and very ugly. It is somewhat natural to assume the worst and fear the unknown.

Principles That Will Help You Win 7 Instead, should you be asked why you are there, reply simply with a variation or two of the following: “It’s kind of you to ask. I’m new in town and I wanted to learn how things work here.” “Actually, I’ve never been to a meeting of the Board of Appeals, and I’ve always wanted to see one or two.” It is rare for the Board to pursue the matter after such responses. But, because you may be nervous if you are inexperienced in such matters, here is how to handle the next round, should it come: Q: “Are you planning to come before us?” A: “I haven’t got anything worked up, but if I decide to seek a permit, I’ll certainly be better off for having come this evening.” Q: “What kind of project did you have in mind?” A: “I’m new to this. I don’t have anything specific yet. I’ve never attended one of these meetings and I was curious.” Or, for the longer-term resident: A: “I’ve never seen one of these meetings. I figured that if I ever need to come here, I’d better learn what you are interested in hearing from applicants.” In other words, you don’t have to tell them details at this point. It is unlikely that you will be pressed. And don’t be so suspicious. They’re just curious about why you are in the room and are trying to be neighborly. They are not mad at you yet. Don’t give them a reason to be aggravated. Be pleasant, and smile.

1.5.3 Know the Law Arrrrgh. I can’t tell you how many times clients have called and said: “Well, before I bought the property, I went and talked to the Building Inspector, and he told me it would be no problem. So I bought the property, and now I have a problem.” So, here’s lesson number one: Don’t get your medical advice from the teenager at the cash register in the drug store. And don’t get your legal advice from the Building Inspector or from the sweet lady at the counter in the Building Department who says: “You don’t have to buy the whole zoning ordinance; I could just photocopy the relevant section for you.” Wrong. Buy the bylaw or ordinance—the whole thing. If you are going to retain counsel, buy two copies: one for you and one for your lawyer. If you don’t provide your lawyer with a copy of the local bylaw, the lawyer is just going to charge you for the time the paralegal spends getting it. While it is true that there are services available to lawyers (and anyone else who wants to spend the money) that sell CDs filled with the zoning bylaws of every municipality in the state, it is difficult to bring the CD to a planning board meeting and pass a relevant section across the table. The typical cost for a bylaw or ordinance is $6 to $24. If it is expensive to purchase a copy of the bylaw or ordinance and it is short enough, you may photocopy it for your lawyer. Generally, there is no copyright protection for a public law. What could you find in the bylaw or ordinance that you might not get from the Building Inspector or Secretary to the Board? Definitions, effective dates, cross-references to exceptions, a zoning district

8

Chapter 1

map, and so forth. You and your lawyer need the original bylaw. Don’t accept anyone’s word about what it says. Don’t even accept the word of another antenna structure owner in the area or town. He may not have kept up with changes instituted since he erected his antenna system. He may, heaven forbid, have never even applied for a permit. Don’t laugh. I’ve seen both.

1.5.4 Know the Players It is not crucial that you know the members of the Board personally. One of the blessings of America is that, by and large, we have better government than we deserve. The Board may pay special attention to a gray-haired town father or mother with encyclopedic knowledge of town history. The Board might rule against you for any number of reasons, but you probably cannot obtain the good will of Board members starting now. Spend your limited time on preparing a terrifically thorough presentation, not schmoozing with Board members. You should, however, pay a courtesy call on the Secretary to the Planning Board, the Secretary to the Board of Appeals, and the Town Planner (if there is one). And, as mentioned above, you should attend meetings of the Planning Board and the Board of Appeals to see what kinds of questions pop up over and over again. Here’s a clue: Boards always want setbacks, distances, construction details, scaled drawings, the names and addresses of abutters, and so forth. When you make such courtesy calls, do not ask: “Can I get a permit to erect my radio antenna system?” Instead, the correct question is: “What information does the Board need to properly evaluate my application for a radio (or TV or cellular) antenna system?” (Hint: If you are constructing a backhaul microwave link, stick with “radio antenna system” as the description. The word “microwave” is wrongly, but popularly, associated with frightening thoughts.)

1.6 Be Nice—and Flexible After you have paid your courtesy calls, you will return to begin assembling your application. After it is assembled, you’ll be back to ask if you’ve included everything necessary for an evaluation. As a citizen of the town, and as a decent human being, it is always to your advantage to be nice—even if you feel that the town is out to get you. Yes, even those who are paranoid have enemies, and the town may indeed be out to prevent the installation of your antenna system. Even so, be nice and show respect. You could be dealing with these people for up to two years (if it drags out, and sometimes forever if the town has a renewal of the permit process). Remember, most local elected officials try very hard to be reasonable and fair with all applicants. Never forget that they are human beings, too. Nobody appreciates someone who swaggers into meetings with a know-it-all attitude. Recall the words of Matthew 10:16: “Behold, I send you forth as sheep in the midst of wolves. Therefore be wise as serpents and harmless as doves.” Finally, don’t forget that most officials are willing to consider alternatives. So be sure you are willing and flexible, too.

C HA P TER 2

The Process in a Nutshell

Let me warn you now: If you do it right, this is going to be a grueling process. The majority of the burden will fall on you, the applicant. In a contested case, a lawyer will probably be a necessity if you want the permit to put up your antenna system.

2.1 Preparation, Preparation, and Preparation Everyone watches TV programs about lawyers. They always show intense discussions with the client and exciting courtroom scenes. TV shows never portray the hours and hours of preparation, poring over documents, and creating documents. Nonetheless, the magic to getting a permit lies in both preparation—creating your application and appendices—and live action—encounters with planners and the code-enforcement officer, as well as decisions made during the public hearing, if a public hearing is necessary. Sadly, much of the time in today’s contentious environment, with people up in arms about towers of all kinds, a public hearing is indeed necessary. For a commercial tower, it is almost impossible to avoid. The best way to promote the cause of winning a permit is to prepare a terrific application. Do it right and the hearing can be easy. In this chapter, I will assume that you are buying property in a different town, but even if you already own the land and are just starting the process of applying for a permit to construct an antenna system, read on.

2.2 Buying Land 2.2.1 Selecting a Real Estate Agent If you are like most people, you will be tempted to select the most common form of real estate agent, an agent with listings in the newspaper. You may be making a very simple mistake, but it is certainly mistake number 1. What you want is a commercial real estate agent, someone who finds sites for Burger Kings, real estate developers, Hampton Inns, Dunkin Donuts, etc. Why would you want such a person as your real estate agent? ●

This agent has learned to keep his or her mouth shut. Tight. You don’t want the purpose you have in mind disclosed any sooner than necessary.

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This agent may have already learned how to do business through a “straw man.” That’s someone who will buy the property but is under an obligation to resell it immediately to you without raising the underlying cost. This agent more likely has a sense of the value of raw land (and raw land sells for prices that are very different than land in your basic suburb, with different commission rates, too). This agent has spent some time reading the town’s zoning bylaws, or is willing to read them, before wasting your time to go look at land that you later discover is in the wrong zone—a zone where the tower you’d like will simply never be permitted.

As you think about selecting a real estate agent, remember some key points: ●

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The real estate agent is not your agent, but rather the agent of the seller. Meaning to you: Nothing you confide to the agent will remain confidential. So, unless this is really the boondocks, don’t talk about your plans to install a really big antenna system. If the agent thinks a particular neighborhood could revolt when you announce your plans for an antenna system, you may not be shown every possible plot. You may be shown land in areas of town that the agent considers more industrial or somehow more appropriate. The real estate agent does not know enough—or doesn’t want to learn—about antenna-related issues. What am I really saying here? I’m saying that there are a lot of real estate agents around. Some are great; some aren’t so great. You have very specific requirements that you know best. For example, for an AM radio station, you probably do not want to be on the top of a rocky hill, where radials will present a huge problem. For an FM radio station or a TV station, you may not want to be in a valley, or halfway down the side of a hill, unable to reach an audience “on the other side of the mountain.”

Unless the agent clearly understands the facts you are relating, you could waste a lot of time being shown sites that are totally unsuitable for a radio antenna—because the lot is too small; because it is located within an industrial park development with covenants, conditions, and restrictions (CC&Rs) that will prove intolerable;1 because there is a giant hill nearby; and so forth. Life is too short to deal with a real estate agent who won’t listen well. Here’s a test that has proven useful for others: ●

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1

Ask the agent to tell you the compass direction from a site to the local high school. If you get a nervous laugh and an answer to the effect that he or she was never much good at science or math, forget it. Find another agent. This one can’t read a road map. Ask the agent for the distance from the site to the nearest serious hill. This will flesh out the agent who doesn’t own a U.S. Geological Survey (USGS) section map or the agent who can’t scale out distances from a map. You don’t want that agent. (I’ve yet to find a real estate agent who could actually do the trigonometry to tell you the angle to the hill.)

You didn’t think CC&Rs could be involved in a commercial tower situation? See http://www.szlawfirm.net/files/chambers_v_old_ stone_hill.pdf for a discussion of Chambers v. Old Stone Hill, 1 N.Y.3d 424, 806 N.E.2d 979, 774 N.Y.S.2d 866 (2004), preventing the erection of a 120-foot monopole in Pound Ridge, NY, because a restrictive covenant limited land use to single family homes.

The Process in a Nutshell 11 So who do you want as a real estate agent? You might find a really savvy agent, but it is rare for anyone to be as good as you are at the process. Begin by arming yourself with the bylaws or ordinances of communities you are willing to consider, as well as local maps and local USGS section maps (for elevations). Yes, you can always get topographic information online, but you’ll want to spread out a map. Try to get a hard copy. Never ever trust the word of a real estate agent on the question of what the local bylaw or ordinance says. Almost never trust the word of a real estate agent on the question of how close the house is to an interfering hill or mountain. Again, you will be your own best agent. There is one possible exception: The commercial buyer’s agent. This person works for you and not the person selling the lot, farm, or woods. He or she owes a duty of loyalty to you. But, you may have to pay this agent whether or not you buy a lot through him or her. Nonetheless, check it out. If your time is just not available, this may be your answer. There is another strategy: Hire a local lawyer experienced in land development, one who has had experience with various local towns and bylaws. Let him or her guide you away from trouble and toward happiness. Then use a smart real estate agent of any stripe (buyer’s or seller’s). Finally, if you are lucky, you might find a “site acquisition consultant.” This is usually someone who has worked for cellular telephone companies and has been down this road before. Caution: Real estate rules and regulations change from state to state. What’s the big deal? Just ask those living in Pennsylvania. In a ruling that could guarantee millions of dollars in additional tax income for Pennsylvania counties, schools, and municipalities, the Commonwealth Court has ruled that cell towers can be taxed as real estate. In 2001, one county decided to tax all cellular towers and their supporting pads as improvements to real estate, no longer considering them personal property. You could also be looking for land in Colorado, where even fairly large tracts of land (up to 35 acres) could be subject to the Common Interest Ownership Act (CIOA). This act permits any community with “common area”—road, frontage, drainage, signs, etc.— to be subject to the Act. Your neighbors might be able to band together to create a homeowners’ association (HOA) to create and enforce covenants that might bind your land even after you’ve purchased it for the purpose of a commercial tower. Your agent or lawyer will know things like this, right? Let’s hope so.

2.2.2 What to Tell the Real Estate Agent Tell the real estate agent that you have special land requirements in mind and questions about buildings on the land are secondary. It is very hard to improve a piece of land that is unsuitable for radio due to interfering hills, lack of an access road, bad association bylaws, and so forth. It is almost impossible to enlarge or remodel a piece of land. Don’t tell the real estate agent that you want to erect “some really big towers.” This may frighten the agent. Although you say “125 feet,” the agent may somehow end up envisioning “1250 feet.” The

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seller’s agent owes you no duty of fidelity or confidentiality. You would obviously never tell the seller’s agent how much you are really willing to pay for a house. That information will find its way to the sellers.

2.3 Evaluating Antenna Sites If you aren’t an engineer, don’t have one on staff, or don’t have a consulting engineer, you could make a serious mistake. Get one. But, there is one rule that needs to be expressed in bold, capital letters: WALK THE LAND. There are other ways to learn. Recent editions (17th and later) of The American Radio Relay League (ARRL) Antenna Book also contain much valuable information on antenna site selection. See Chapter 23, “Radio Wave Propagation,” and Chapter 3, “The Effects of Ground” in that text. You will need detailed topographic maps for your transmitting location; in the United States, you can get information on how to obtain the appropriate topographic map for your area by calling 1-888-ASK-USGS or by checking www.usgs.gov/pubprod/. Free topo maps may be found at www.topozone.com/ and other sites. The smoothness, or seamlessness, when changing from one topo map to an adjacent one may not be perfect (but what do you want for free?). As you are about to invest big money, you may wish to subscribe to their TopoZone Pro service. Other topo sites include http://www.acme .com/mapper/ and http://mapserver.maptech.com/homepage/index.cfm. Google Maps can also provide terrain information: http://maps.google.com/maps?hl⫽en&tab⫽wl. The DeLorme company, Topo USA, and National Geographic also sell CDs of topographic maps. I’m a huge fan of DeLorme, because they easily permit you to draw a radian from the proposed site to a target site, perfect for mapping out whether or not there are interfering hills between the antenna tower and the studio site for a studio-to-transmitter link (STL) analysis.

2.4 The Purchase and Sale Contract 2.4.1 Using an Attorney To a layman, the offer or purchase and sale agreement may seem like the easiest portion of the landbuying effort—a portion the applicant can handle himself. Actually, it is the portion of the effort for which you will likely pay much less than you think is required, but for which you will get much more than you realize. One often-overlooked possibility is that once you submit an offer, and it is accepted, you have a contract. If you discover a bylaw problem at this point in the discussions, you may have to kiss your “earnest money” goodbye. Here’s a story combining several recent cases. I don’t do real estate conveyancing, but I have a friend who does (and to whom I recommend prospective purchasers of property). I did all the “antenna law” work and (as it involved looking at three towns, including meeting the Building Inspector in each town to clarify interpretations of tough questions) charged about $2000 (this was a very long time ago). It

The Process in a Nutshell 13 was an unusually large amount of work for such a matter, but the applicant couldn’t really do any of the footwork himself. The client now has a permit for the tallest antenna-support structure ever erected in his chosen town, and we never had to go through hearings of any kind. My lawyer friend, who did the conveyancing work, charged $750 (but should have charged about $1250, since it took longer than anticipated). But, the client got about $4000 shaved off the purchase price when the conveyancer found some problems that the client was willing to fix himself. So, the client (remember, this is a composite story) paid about $2750 total, saved $4000, and got the antenna system of his dreams. Since the client was working with lawyers who know their way around, we even introduced the client to a bank that (1) would close sooner than the one he found, and (2) would match the very best price (mortgage interest rate) he found. His other bank was giving him a hard time on one element of his financial picture, while our recommended bank did not make a fuss about that element. For the latter service, there was no charge. All of these expenses, by the way, were a tiny, tiny percentage (less than 0.5%) of the purchase price. Note the picture I am painting. Using a lawyer early can save you money, time, and grief. Of course, you would expect me, an attorney, to say that.

2.4.2 Making an Offer Real estate agents have been known to urge buyers to quickly sign an offer to buy, before you have a chance to retain a lawyer to represent you. As explained previously, don’t forget that an offer, once accepted by the seller, is a contract. Below is some wisdom in the form of documents prepared from the work of Jim O’Connell, W9WU, and John Swartz, WA9AQN. McConnell is an ARRL volunteer counsel and former senior litigation attorney in the Office of the Attorney General of Illinois. He is the lawyer who succeeded in getting radio hams within a town declared a class, for a class action, in the Borowski case.2 John Swartz is a real estate, bankruptcy, and commercial lawyer with Giffin, Winning, Cohen & Bodewes (Springfield, IL). Both have granted permission to use their ideas, but neither one is your lawyer—so you can’t sue them if something goes wrong! These forms below may prove useful for the do-it-yourselfer or for his or her attorney. These additions to the purchase-and-sale agreement are designed to give you and your attorney time to research the local bylaws or ordinances, time to force the seller (or the seller’s attorney) to hand over relevant documents, and time for you (or your attorney) to review them. You are free to negotiate the number of days necessary to do this. (These forms are on the CD as filename Addenda to Real-Estate Offer.doc. In addition to the documents referenced in this book, the CD contains a wealth of information, images, and documents pertaining to all of the topics of this book. You’ll find it worthwhile to explore all of the topic areas contained on the CD.)

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Borowski v. Burbank, 101 FRD 59 (ND IL, 1984).

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For Existing Construction Addendum to offer to purchase between Buyers and Sellers, for the purchase of property at ________________________________________________ This offer is contingent upon there being no limitation imposed by any municipal or local unit of government having jurisdiction over the erection by Buyer upon the property of a system of antennas and supporting structures not less than ________ feet in height suitable for use by Buyer in the XXXX Radio Service. The acceptability of any such limitations shall be at the sole discretion of the Buyer. Buyer shall have twenty-one (21) days from the signing of this agreement to determine if there are any such limitations imposed which are unacceptable to Buyer, and declare this contract void. Seller shall thereupon return any funds deposited hereunder. This offer is further contingent upon inspection by buyer and buyer’s attorney of the applicable covenants, conditions, restrictions of record, property owners association rules (if any), or other documents restricting the use and occupancy of the land and premises in order to determine whether such documents contain any restriction which would prohibit buyer from erecting and maintaining his radio antennas and supporting structure not less than _____ feet in height on the property. Within fourteen (14) days of the signing of this agreement, seller or seller’s attorney shall furnish to buyer’s attorney a spotted survey showing all improvements, restrictions, and easements and a copy of the existing title policy or other documents showing such covenants, conditions, or restrictions of record as well as copies of any property owners association rules and regulations affecting the property. Buyer and buyer’s attorney shall have fourteen (14) days thereafter to inspect the documents to determine whether the restrictions or conditions therein are acceptable to buyer. Should easements, covenants, conditions, restrictions of record, property owners association rules, or regulations exist so that buyer’s installation of the aforementioned antenna and support structure may, in buyer’s sole opinion, be inhibited or precluded, at buyer’s option this contract shall be deemed null and void, and all obligations of both parties cancelled and all deposits refunded promptly. ____________________________

____________________________

Buyers

Sellers

Date: ______________________, 200_

For New Construction/Subdivision Where the Builder/Developer Still Owns the Lots Addendum to offer to purchase between Buyers and Sellers, for the purchase of property at ________________________________________________ A. Buyer has informed Seller that Buyer is XXXX, and Seller warrants that no covenants, conditions, restrictions of record, homeowner association or property owner association rules or requirements presently exist or have been or will be recorded prior to closing, which would or which may be construed to restrict or prohibit Buyer, from and after closing and delivery of the premises, from installing and maintaining radio antennas and a support structure not less than ____ feet in height on the property. Seller further agrees that no such covenants, conditions or restrictions of record will be imposed by Seller or his transferees or assigns in any plat of subdivision or Planned Unit Development agreement affecting the property recorded hereafter. Seller agrees to provide Buyer, within fourteen (14) days of

The Process in a Nutshell 15

the signing of this agreement, and again ten (10) days prior to closing, with a copy of the recorded plat of subdivision and all other documents showing all covenants, conditions or restrictions of record, homeowners’ or property association rules or regulations running with the land or affecting the property. Should such covenants, conditions, restrictions of record, homeowners’ or property owners association rules, or regulations exist on either date such that Buyer’s installation of the aforementioned antennas and support structure may be inhibited or precluded, then at Buyer’s option this contract may be deemed null and void, all obligations of both parties canceled and all deposits refunded promptly. B. Seller further agrees that, to the extent Seller is the owner of property located within 300 feet of the subject property, Seller will provide Buyer with a statement that Seller, as owner of adjacent properties, has no objection to the granting of a building permit for a radio antenna support structure by the local municipality. C. Seller also agrees that, to the extent that Seller controls any architectural committee, homeowners’ association, property owners’ association, or similar committee from which permission is required for construction of the Buyer’s radio antennas and support structure, that Seller will grant or cause to be promptly granted such permission upon application by Buyer. D. Seller further agrees that this offer is contingent upon there being no limitation imposed by any municipal or local unit of government having jurisdiction over the erection by Buyer upon the property of the system described in paragraph A, above. The acceptability of any such limitations shall be in the sole discretion of the Buyer. Buyer shall have twenty-one (21) days from the signing of this agreement to determine if there are any such limitations imposed which are unacceptable to Buyer. If there is such a limitation, then at Buyer’s option this contract may be deemed null and void, all obligations of both parties canceled and all deposits refunded promptly. E. The promises and covenants by the Seller contained in paragraphs A through D hereof shall survive the closing of this transaction, notwithstanding the delivery of the deed by the Seller. ____________________________

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Buyers

Sellers

Date: ______________________, 200_ Caution from James C. O’Connell, Esq.: This document was prepared in consideration of the laws of the State of Illinois. Real estate law varies among the states. You should consult an attorney prior to entering into any real estate transaction. If you mess it up, you’ll have only yourself to blame.

2.5 Fix any TVI/RFI First Radiofrequency interference (RFI) should be irrelevant to your application for a permit to erect and maintain a radio antenna system. However, the existence of RFI will color the proceedings and inject negativity—against you, the applicant. Of course, the truth is that the higher the antenna, the less likely, not the more likely, there is to be interference, but that’s not the way most neighbors might feel about the subject. Remember, you want to wear the white hat here.

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This is not an engineering text, so see http://www.arrl.org/tis for some good information sources on various aspects of RFI. The ARRL RFI Book (http://arrl.org/catalog/6834/) is another good source of help for all types of RFI problems. For detailed discussions on the use of toroids to rid your world of RFI, see www.yccc.org/Articles/W1HIS/CommonModeChokesW1HIS2006Apr06.pdf, www.dxzone. com/catalog/Technical_Reference/Radio_Frequency_Interference/, or www.audiosystemsgroup.com/ RFI-Ham.pdf.

2.6 Building Permits Let me define here some terms you will encounter as you proceed further on this adventure. Your city or town will almost certainly require a Building Permit. Absent some special circumstances, a Building Permit can usually be granted by a Building Commissioner or a Building Inspector. In some municipalities, however, you may also need to seek the grant of a land use permit, which may be called a Special Permit, Special Use Permit (SUP), Special Exception, Conditional Use Approval (CUA), or a Conditional Use Permit (CUP). For convenience, let’s group these special types together and call them Special Permits. You may also encounter the Variance. All such grants are not the same thing as a straightforward Building Permit. Information on the exact type of permission you must get is contained in either the local ordinance or state law, or both. In general, the difference between a Special Permit and a Variance is that a Special Permit may be granted if you meet the conditions set out in the ordinance. By contrast, a Variance, again governed by the law of your state, may be considerably more difficult to obtain and will “run with the land” (meaning that it applies to your plot of land forevermore).3 Normally, before a Variance can be granted, the Board of Appeals or Planning and Zoning Commission (whatever may be the name of your local body) must find that there are special conditions relating to the land. What is “varied” (changed) in the circumstances of a radio antenna system application is normally a yard, setback, height, or other dimensional regulation. Put simply, if your bylaw or ordinance says that you need a Special Permit to erect a radio antenna system over 75 feet high and you must meet certain conditions to get this Special Permit, you are seeking a discretionary permit, but the rules are generally clearer. If your bylaw simply forbids what you want to do, because it will be too close to a property line or too tall, to name two examples, then you need a Variance before a Building Permit may be granted. Even after obtaining the correct grant, however, you will still have to deal with the Building Inspector, who can, at his or her discretion, make things easy (read: less expensive) or hard (read: more expensive) for you. Be respectful. Get and post the permit. Get the proper inspections along the way. Do things right. It is not weird or unusual for the system to require you to apply for a Building Permit that the Building Inspector then denies, before you go to the Board of Appeals. After a win at the Board level and subsequently being granted a Special Permit, you return to the Building Inspector for the actual Building Permit. 3

There are jurisdictions that have variances for a term of years, but that’s a level of detail we don’t need to get into now.

The Process in a Nutshell 17 One common question I hear is: “What if I have an attorney draft a Variance application and represent me before the review board? What should I expect to pay the lawyer for these services?” My response is, first, try to avoid a Variance application if at all possible. Conditional Use Permits, Special Permits, or Special Use Permits are generally easier to obtain. Construction as a matter of right is best! Always remember that no lawyer can guarantee results. You will be best off if you do your own legwork. Meet the neighbors. Charm them. Get a sense of who is going to give your trouble and who won’t care. Get letters of support, or at least letters of indifference. Then apply for the permit. Figure that each evening meeting of a Planning Board or Board of Appeals that your lawyer attends will cost you about 2 to 6 hours, or $500 to $1000 (calculate the hourly rate ⫻ hours, and don’t forget that the lawyer gets travel time, too).

2.7 Your Building Permit Application 2.7.1 Retail Politics Once you have your proposal—your permit application—ready, it is time to show it to the neighbors. This is retail politics at the “door-knocking” level. The former Speaker of the House, the late Thomas P. “Tip” O’Neill (D-Mass.), related this story in Man of the House: The Life and Political Memoirs of Speaker Tip O’Neill (with William Novak; Random House, 1987, p. 26): The second political lesson I learned from my first campaign came from Mrs. O’Brien, our elocution and drama teacher in high school, who lived across the street. The night before the election, she said to me, “Tom, I’m going to vote for you tomorrow even though you didn’t ask me to.” I was shocked. “Why, Mrs. O’Brien,” I said, “I’ve lived across from you for eighteen years. I cut your grass in the summer. I shovel your walk in the winter. I didn’t think I had to ask for your vote.” “Tom,” she replied, “let me tell you something: people like to be asked.”

The wisdom of that statement is remarkable. It is paralleled in the old salesman’s maxim: “Always ask for the order.” The thought also applies to antennas: “Everyone likes to be asked.”

2.7.2 Canvas the Neighborhood How much time do you have to soften up the neighbors? It might take six months to meet all of them and then go back on a second occasion to discuss your project. If you don’t have the time, or could never generate the nerve to go calling twice, you might be forced to condense the “meet and greet” and the “briefing” into the same meeting. Eventually, though, you will need to put together a good printout of your whole permit application, in a nice presentation folder, and pack up preprinted letters for each of the neighbors you are going to visit. It is okay to bring around a fat envelope carrying these things, because you want to convey to neighbors that you are going to speak with as many in your neighborhood as possible. You want to be seen as “trying to work with the neighborhood.”

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You should bring along three separate versions of a letter and let the conversation flow. As you head for the close (the point where you ask the person what he or she thinks of your proposal), remember that you have these three alternatives in your envelope: ●

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Alternative 1 (for “friend of the project”)—I have no objection to the granting of a Special Permit [Special Exception, Variance] to him, and I encourage the Board to do so. Alternative 2 (for “neutral to the project”)—I do not object to this project. Alternative 3 (for “grumpy to the project”)—[Name of applicant] has reviewed the alternatives with us. The woodsy site he proposes is the most favorable to us from an aesthetics perspective. (or) The woodsy site he proposes to use offers favorable screening to me as an abutter. (or) The woodsy site he proposes is the least objectionable site.

The accompanying CD has full letters ready for your use. When the time comes to reach into the envelope and pull out a sheet, pull out the version of the letter that this neighbor is most likely to sign. If you have to guess, always choose the version that requires the neighbor to be less favorable (if in doubt between grumpy and neutral, hand over the grumpy version). The most important thing is not whether the person signs Alternative 1, 2, or 3 but rather that the person signs something that is not an objection. It is not necessary to leave a copy of the permit application with each person. If that person turns out to be an enemy, you want inertia to be on your side. An enemy can always go to Town Hall and pay for a photocopy of any permit application, but it is amazing how seldom that occurs. There’s no need for you to educate your enemy on your nickel. Mostly, people just show up and complain on general grounds. The less they appear to know what they are talking about, the better off you are. For example, if an opponent really gets the wind in his sails, he might give the impression that you are going to erect another Eiffel Tower, when you plan on a support structure that never exceeds 18 inches in width. Another mistake opponents make that can make them look bad is to bring in a photograph with a handdrawn tower that is way out of scale. Your own scaled photographs, photosimulations, or drawings will look much more reasonable in contrast. Don’t be the first to give an enemy all the details to study each night and get peptic ulcers over. So, bring the application and try to take away a signed letter. Note, however, that even a presentation to an enemy is a good idea, because you will want to represent to the Board that, as best you could try, you’ve spoken to each neighbor—“even the ones who are here tonight to oppose me.”

2.7.3 Petitions Instead of asking someone to sign a personalized letter, you may be thinking: “Wouldn’t it be easier to just ask for a neighbor to sign a petition, with other names above it?” The answer is: “Of course!” The problem is that for the very reason that you think getting a signature on a petition is a good idea, a signature on a petition carries less weight. It is always easier to get signatures on a petition than to get letters. Because it is easier, there is a tendency for Boards (and elected representatives, too) to consider

The Process in a Nutshell 19 petition signatures as less valuable. However, there are ways to make the obtaining of individual letters almost as easy as obtaining petition signatures.

2.8 How to Obtain Favorable Letters 2.8.1 Start with the Easy Ones Contact other antenna structure owners in town. These are the first people to whom you should go. But, what do you want from them? ●

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Town background G-2 on neighbors (G-2 was originally a World War II term for intelligence — think of it as “good gossip”)

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Analysis of your proposal

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Favorable letters, and

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Allies

2.8.2 Town Background If you are new to the town, discussing your situation and desires with other antenna owners in town will elicit information on previous experiences in town involving the erection of antenna systems. For example, it can be hard, if not impossible, to find previous applications for antenna systems. The town recordkeeping system is just not indexed that way. It is indexed by property. You might discover that a construction company moved in seven years ago, applied for an antenna system, received a permit, erected it, and shut down last year just before you moved to town. So, you wouldn’t know about the existence of this precedent by driving around town looking for antenna structures. Yet, the file found under that address in the Planning Board, Board of Appeals, or Building Department office could prove very useful. While previous administrative decisions in land use matters seldom create a legal precedent (because each piece of land, and each neighborhood, is different), such a file is still useful because it tells a story. Here’s an example of a good use to which an old file may be put. There are towns that measure the structure’s height to the top of the antenna-support structure, not to the top of the mast. There are towns that want both. The file may show (read the minutes of the hearing, if available) if a previous applicant was represented by a lawyer. That lawyer may still be around, and, should you choose to hire that lawyer, you’ll pay for less time in bringing a lawyer up to speed. The previous applicant paid for that education! The file may tell you what kind of objections seemed to concern the Board, what additional information or documentation the Board required, and what kind of restrictions, if any, the Board put on the permit. Use previous files to be sure that your application covers all of the ground that the Board wants covered.

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Finally, the file can provide a basis for arguing that Western Civilization as we know it will not come to an end if a radio antenna system is erected! If you want to be really thorough, you could use a previous antenna situation to create proof that real estate values do not fall when an antenna is installed. Just go to the assessor’s office and look up the assessments for that house and the neighbors. Enter those assessments into a spreadsheet, showing valuations before and after the erection of the antenna system, to show that values did not go down. In other words, previous files can be very helpful.

2.8.3 G-2 on the Neighbors Other antenna owners in town may have some knowledge of who your neighbors are, what causes they have been active in, if they have children, and so forth. Use these owners to get a read on your neighbors so you’ll know whom to approach first when the time comes to getting letters of support. What you will want is momentum, the big mo. If you have six letters of support in your pocket, it is easier to get the seventh. So, after obtaining a letter from anyone in town who will write one (it does not matter if they live on the other side of town, so long as they are residents of your town), it becomes part of your arsenal: “I have several letters of support already and I was hoping that you’d sign one too.” Although the Board might give a letter from the owner of an antenna across town less weight, it will still show that you’ve been out there trying to sell the project and that you are trying to work with the town and the neighbors. Remember, Boards do not like controversies. What they really want is a hearing where the proposal is unopposed or where opposition is muted and the applicant seems to have done his or her homework.

2.8.4 Analysis of your Proposal Of course, your application proposal is a brilliant solution to your antenna problems. You know that. However, you’d be amazed at how useful it can be to have another antenna owner, or engineer, look at the situation. Is the structure really in the best place? Are your guy wires really oriented to minimize visibility? They’ll be less visible against a background of trees. It always helps to have another set of trained eyes look over (“vet”) the proposal.

2.8.5 Favorable Letters You definitely want the most favorable possible letters from the other antenna owners in town. You may find one who is considered a town father and who is well known to the Board. You could get really lucky and find one who formerly served on that very Board. You might find one who is in charge of the town’s civil defense and who can write a letter for you on town stationery (don’t laugh, it has been done). Generally, however, it does no good for the other owner to identify himself as such in the letter, unless he or she can write a letter that says, in effect, “You may recall the hue and cry at the time that I applied for my permit. It was predicted that Western Civilization as we know it would fall apart. I am pleased to report that, since then we, as neighbors, have reconciled and that, despite dire predictions, no television interference has occurred—and property values have risen.”

The Process in a Nutshell 21 Unless you get a letter from another owner in town that says such things, leave off his affiliation, as it will only be used against him, as in “Well, harrumph, he’s another antenna owner, so you’d expect him to be insensitive to the real issues.”

2.8.6 Allies Courting the other antenna owners in town can also be useful for the purpose of developing allies. The best kind of ally is one who reviews your application with you, provides G-2 on the neighbors, and shows up at the hearing. But, there is also the question of lobbying. You’d be amazed. It happens. There is going to be a period of weeks, sometimes months, between the point where you reveal your plans for the first time and the evening of the hearing. You could discover that an antenna owner in town is the brother of a member of the Board considering your application. You could discover that he is married to your next-door neighbor’s sister. Whatever. The point is that a strategic word put in here or there could prove useful. For all of the above reasons, try to find and make friends with the other antenna owners in town.

2.8.7 Now go to the Neighbors Again, start with the ones you suspect, based on previous intelligence, will be the most inclined to sign favorable letters. This generally means the ones least able to see your antenna system. What you are looking for here is the steamroller effect. If your experience with a neighbor has been minimally favorable, as you pack everything up, put your application back in your envelope or briefcase, put away the letter that the neighbor just signed, and head for the door, pause at the door and ask: “Whom do you think I should talk to next?” Then ask: “What should I know about them?” You’d be amazed at the responses you’ll get when you are no longer taking notes. It will prove very useful when you approach the next neighbor. Now you know what the difficult questions are going to be and you’ve had a little practice in making these presentations. You’ll be better off now handling the nearby neighbors. Remember, if the closest neighbors don’t object, few Boards will refuse your permit because some wacko from the other side of town stands up and makes irrelevant and possibly illegal noises about electromagnetic fields.

2.9 Public Hearings It is highly likely that there will be a public hearing, unless you are applying for a permit as a matter of right. An example of construction as a matter of right would be applying for a permit to renovate your bathroom. If you are applying for a Conditional Use Permit, a Special Use Permit, or a Variance, you will be faced with preparing for a public hearing, and this necessitates planning and contact with the neighbors.

2.10 The Viewing It is likely that the Board (the permit-granting authority) will want to come by your place to have a peek at the situation. This is not trespassing. Clean up your place (get rid of any slash from downed trees, pick up loose trash) and welcome the visit. Serving coffee and donuts is unnecessary and will

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likely be ignored, even on the coldest and ugliest of days. Don’t try to lobby the Board. Just point out the orange tape which shows the property lines and tell them which way is north. The visit may last only 10 to 15 minutes.

2.11 Deliberations and Decisions Before the public portion of the meeting is closed, you may submit a proposed decision, which may be ignored or may prove useful, depending on whether or not the Board is going to grant your application. After that, if your state has an open-meeting law, you may sit in on the deliberations and even take notes, but say nothing. In some states, the session where the Board deliberates and votes is open to the public (for example, Massachusetts), and in some states it is closed (for example, Vermont). This is solely a matter of the wording of your own open-meeting (sometimes called “government in the sunshine”) law.

2.12 Appeals If your town bylaw limits all antennas to 35 feet, or if there is some other reason why the Building Commissioner (sometimes called a Building Inspector) cannot issue you the permit you have requested, you will appeal to the Board of Appeals, the Planning and Zoning Commission, or whatever the group that handles appeals is called. This is another reason to own your own copy of the entire zoning bylaw, as the appeal process will be spelled out in the bylaw. Keep your eyes open, however, as the Building Inspector may recommend that you apply for an appeal in the form of a request for a Variance, a request that may be difficult or impossible to obtain, while your best action might be simply to appeal a decision of the Building Inspector on the grounds that the inspector is wrong or that federal law supersedes. In other words, the exact form of your appeal is a legal question, with very real consequences.

2.13 Lawsuits Lawsuits take a while, cost serious money, and have an uncertain outcome. Seek advice about all of your alternatives short of a lawsuit before commencing one. This is especially true when dealing with antenna zoning because the most common outcome of a lawsuit won by an antenna applicant is that he or she is returned to the same Board, with instructions from the court. If it becomes necessary to file a lawsuit, the information on the CD will save you a lot of money.

2.14 How Long Will this Take? It will probably take three months to a year to get through the Board level and back to the Building Inspector. Add another one to two years for a lawsuit, a win, and a return trip to the Board. Although you could be done in six months, it is not unheard of for this time frame to be three years. While you are agonizing over the potential time involved, remember this quip: Q: What’s the difference between a GOOD lawyer and a BAD lawyer? A: A BAD lawyer can let a case drag out for several years. A GOOD lawyer can make it last even longer.

The Process in a Nutshell 23

2.15 How Much will it Cost? The certain answer to this is: More than you want to pay! You can rely on the fact that few applicants like the requirement imposed by local law to go through the hearing process. Fewer still like retaining a lawyer for the hearing process. No one likes retaining a lawyer to appeal the matter to a court. Cost is measured in the hours required. Lawyers do not generally take such cases on a fixed-fee basis. I’ve never heard of it happening, unless it is a cellular telephone company offering a big law firm a lot of tower applications. Of course, if the fixed-fee were high enough, one supposes that lawyers would be more flexible. Very roughly, the application process through the hearings may take 12 to 60 hours (at your lawyer’s hourly rate). Very roughly, an appeal through the first level of court can run from 25 to 200 hours. The problem in making an estimate is the question of what the opposition intends to do. In other words, you could be in for a nickel, or in for a dollar. No one knows. How important is your antenna to the economic success of your station?

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C HA P TER 3

Your Winning Team

Ultimately, you’re unlikely to achieve your goal without some outside help and will have to recruit other people to join your team. Still, you’re the team leader.

3.1 Know Your Strengths You are about to embark on a program of assembling a construction proposal, lobbying neighbors, assembling applications (which may include a Building Permit, a Land Use Permit, a Wetlands Permit, clearance from the State Historic Preservation Office, and any number of other documents), presenting your proposal to a public meeting, and defending yourself against unwarranted attacks. Are you really good at all those things? To do it well, you must be part landscape designer, civil engineer, writer, photographer, graphic designer, salesman, contractor, lawyer, and humble neighbor. As a landscape designer, you will select the spot on the property for the antenna system. Ask yourself if you could move the structure so that it will be less obtrusive. As a civil engineer, you will try to locate the structure so that guy wires go in the right places, and you will have to think ahead about such questions as: “How will I get the concrete truck in here?” and “Where should we run utility lines?” As a writer, you will assemble written proposals that cover all the ground, where each proposal has a beginning, middle, and end and asks for what you need. As a photographer, you must be able to take advantage of a digital camera to get good, usable photos that will reproduce well and permit you to tell a story. Those photos must also be pictures that show what people will recognize and that fairly represent what is going to happen. As a graphic designer, you will assemble a proposal that is a sales document and law brief, all wrapped up in one cover. You’ll select photos and edit photos. (How should a photo be cropped? Should it have an arrow and label in the picture, or just an arrow, with the label below?). You’ll decide when to put two or four on a page and when to simply use a single, larger shot. You’ll figure out how to present a map of the surrounding area, being sure to show tree lines. You’ll crop and present aerial photography and a topographic map. As a salesman, you’ll argue persuasively for what you intend to do, presenting yourself door-to-door in a way that will leave even people who oppose you saying that you dealt with them fairly. 25

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As a legal layman, you will marshal all the federal and state law that benefits you, especially any federal law on the preemption of local zoning for antenna systems—including radiofrequency interference (RFI) (think about possibilities such as interference to pagers, telephones, and TVs and what to say about the potential of interference to public safety communications). As a contractor, you’ll have to think about what is practical for fencing, planting a vegetative screen (if necessary), preventing weeds and trees from growing up inside the compound fence, crossing a gully or stream, and a lot of other details. If you lack any of the professional skills just mentioned, ask for help or hire a professional. If you assume that you can submit a messy, disorganized application—missing required information and necessary arguments—and the Board will still see the merit of your application anyway, you are dreaming. This almost guarantees that you’ll have to retain a lawyer later to straighten out the mess. (Go ahead. Make my day! I assure you that straightening out a mess is much more expensive [read: profitable] than a well-presented application put forward in the first place.) So start right now to arrange for services that require skills that you lack.

3.2 Your Supporters As discussed in Chapter 1, “Principles That Will Help You Win,” make sure your associates are prepared so they don’t raise unnecessary red flags in casual discussions or during a town or a Zoning Board meeting.

3.2.1 Other Antenna Owners It will prove useful to know about the owners of other antenna systems in town, whether or not they are in use. They may be able to tell you about antenna systems of which you are unaware. They may be able to give you tips on dealing with town personnel. Others may be a good source of information on how they have fared in this process, what the Board likes to see and hear, and how to get favorable letters from such local authorities as the emergency management agency, the Department of Public Works, the police chief, and so forth. If you ever needed an excuse to join the Society of Broadcast Engineers or a state wireless association, this is it!

3.2.2 Your Assembled Experts Before deciding to do it all yourself, take a long hard look at what needs to be done. If you can’t do something yourself, bring in someone who can. If you are in a contentious and expensive suburb, expect resistance. If your proposed site is deep in the woods, away from historic districts, on a large lot, with a bylaw that appears to guarantee the success of your application—and you like to gamble— rejoice. Help may not be necessary. On the other hand, since you want to wear the white hat throughout the permit process, experts will prevent you from making a mistake that may later be interpreted as an attempt to “sneak one by” the relevant Board. Most applicants find it wise to assemble a team. Herewith a discussion about team members.

Your Winning Team 27

3.2.3 Your Attorney 3.2.3.1 What to Expect of Your Attorney Selecting an attorney is one of the scariest things you may do. In addition, I send out advice to clients on how to deal with specialized counsel (local counsel familiar with a given town, regulatory counsel who have unusual familiarity with appearing before a particular agency, and so forth) after the decision to hire one has been made. You may find the following document interesting. I first created it when I was president of a company in the cable TV industry, and I use it, or a variation on it, whenever I hire another law firm or lawyer. As a lawyer, I do not mind being held to its terms. Perhaps you will also find it useful. See filename Attorney Fees Letter of Understanding.doc on the CD.

To:

Law Firms

From: In re:

Fred Hopengarten Billable Hours, Invoices, and Expenses

Hiring a law firm is one of the scariest things that I do for myself, my business partners, or my investors. It is tantamount to opening one’s pocketbook and saying: “Here, how much do you want?” Legal services are necessary from time to time, however, and therefore it is important that everyone understand the rules of the game. I hope that this document will explain those rules as we (my partners and I) see them. Activities Not for the Benefit of the Client We have a distinct distaste, and decline to pay, for activities that are performed for the benefit of the firm and not for the benefit of the client. One example is a conference of several attorneys for the purpose of merely deciding the scheduling of work among them. The client should not be paying for time spent while one attorney says to another: “No, Alice, you’ll have to attend that deposition, as I have a hearing in Oshkosh that day.” We have seen invoices in which the firm attempted to bill us for both the speaker and “Alice” for that conference. Another example is a situation in which a second attorney must be involved merely for a ceremonial occasion. In our view, the client should not pay for a second attorney to attend a court session when his or her attendance is required principally to move the admission of the primary attorney. Or, for instance, a loan closing may require the partner in charge of the relationship of the bank to be present when the bank-lending officer is present. Yet, the partner’s time is really to cement his relationship with the bank and not to do any substantive work. That’s a sales expense and does not inure to the benefit of the party who may be called upon to pay the bill from the bank’s law firm. Yet another example is the situation in which an attorney simply must take an emergency telephone call during a deposition. Such things happen in this life, but we’d be mightily distressed to learn that both clients were billed for that time. If an attorney goes to, let us say, a land court to check on several matters in one trip, we expect that the trip will be apportioned, both as to time and expenses, not billed to each client separately. We also object to being billed for time spent by an attorney contacting us to suggest work that he might do, soliciting approval for such work (we regard such activities as an attorney’s sales

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expense), discussing billing matters (a collection expense), or entertaining us or our employees (in general, we’d all be better off at home with our families, thereby lowering the divorce rate). At billing rates of $150 per hour and up, we expect that no lawyer will bill us for time spent making photocopies, getting directions, preparing bills, organizing a file chronologically, and so forth. These matters are properly handled by the lawyer’s secretary, for which no additional charge should be made. In this regard, merely moving such matters into the hands of a paralegal, despite the fact that the paralegal has a much lower billing rate, does not satisfy the criticism. Such functions are properly overhead charges, not client charges. I also get upset about overtime charges for secretarial help when the attorney was simply involved in someone else’s matter during the regular business day/week. For that matter, I don’t expect to be billed for secretarial time in any event, expecting that it is part of the attorney’s hourly rate overhead. If it is secretarial or clerical work, we do not expect to see it on the bill. Quality Control In the course of the past 30 years, I have sometimes been told that certain time was necessary on our matter for purposes of quality control. Since I absolutely hate to pay for a lawyer reviewing the work of another lawyer, may I suggest the following guidelines? ●

If time is spent reviewing work of a junior attorney, where a principal use of the review is to evaluate the quality of the junior attorney’s work with a view toward the question of partnership, it is inappropriate to charge the client.

●

If the time is spent with the expectation that something can be improved a scintilla, then the benefit is likely not worthy of the cost.

●

If the reviewing attorney finds significant things to change, then the attorney who did the work has done an inadequate, perhaps even faulty, job, and it would be inappropriate to charge the client for the faulty workmanship of the junior attorney, even at a lower rate. If the master plumber must rip out the work of the apprentice, should apprentice time be charged?

Presentation of Invoices We will not pay invoices that are nonspecific (as in “For professional services rendered”), unless the matter has been taken by the law firm on a contingency, in which case, I assume that a very specific agreement on fees has been made. We require presentation of the invoice in what some call “insurance company format.” This means that we want to see the name (or initials in the case of attorneys well known to us) of the attorney, the date on which work was performed, the nature of the work (time slip detail is adequate), the amount of time, the billing rate for that attorney, and the extension (amount of time, times billing rate). For almost all law firms, merely correcting the spelling of time slips will permit the immediate presentation of a bill, so we do not believe that this requirement is burdensome. Increases in Billing Rates If an attorney has been given a raise, and the billing rate for that attorney has been raised, we require that we be notified of that increase in billing rate reasonably in advance. Furthermore, if it

Your Winning Team 29 is likely that the billing rate will be raised during the course of a matter, we consider that to be a very serious issue, and we might well choose a different attorney to represent us. I hope you will not be offended when I tell you that I was once invited to retain a lawyer whose billing rate was $90 per hour (this was a very long time ago), only to discover that, during the course of the matter (only 6 months later), the lawyer’s billing rate was raised to $125, a 38.8% increase. Frankly, we considered that to be a “bait and switch” billing tactic, and the resulting discussions were distinctly unpleasant for all concerned. Expenses If you’re going to invite someone from our firm out to eat and have the meal appear later as an expense, please let us pay for it in the first place. If you need lots of photocopies of a document, please let us arrange it. If you need printing, we’d like to arrange it. In our experience, law firms, feeling that such items are on the client’s nickel anyway, are rarely the smartest buyers of such services. Which brings up Federal Express. This fine company has done a good job of convincing the legal profession that it is the only way to go. Not so. We get fine service from the U.S. Postal Service with Express Mail, at 75% less cost. In addition, ordinary UPS is almost always overnight service within our region, at 20% of the cost of FedEx. Furthermore, you might be amazed to learn that FedEx has competitors. Please check them out. Faxing does not necessarily solve the FedEx problem, by the way. The most efficient way to move a document from your word processor to us is to send it as a file by e-mail. This gives us the document in a form that we can immediately edit digitally and return. Oh, yes, please learn to use “Track Changes.” We’d also like it (assuming that there is no extra expense) if you’d learn to make copies for us on two sides of paper, saving filing space and shipping costs. Obviously, if we didn’t have confidence in your firm, we would not have asked you to work on our behalf. Please see that all attorneys who work on our matters see this memorandum. Thanks for helping us out. Thank you.

This is the letter I always convey to law firms hired for personal or business use.

3.2.3.2 The Retainer Letter By contrast, when I’m hired as a lawyer myself, I send out a retainer letter to my client. You should ask for one from your lawyer. Some states require that such a letter be presented to all clients. My retainer letter and that of Philip M. Kane, another communications attorney, are below. These documents are on the CD-ROM as filenames Hopengarten Retainer Letter.doc and Kane Retainer Letter.doc.

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Aty. Fred Hopengarten’s Retainer Letter Fred Hopengarten Attorney at Law Six Willarch Road, Lincoln, MA 01773-5105 781/259-0088 · FAX 419/858-2421 · [email protected] Admitted only in D.C. and Maine September 21, 200_ First N. Last xxx Tower Road Tower, PA 11111

e-mail: mailto: [email protected] Tel.: xxx/xxx-xxxx

By e-mail. Dear [First Name]: Thank you for having the confidence to retain me as counsel with respect to various legal issues arising in connection with your desire to erect and maintain antenna support structures (the “Matter”). I appreciate the opportunity to serve as counsel to you in this matter, and I look forward to working with you on other matters as well. This Letter Required. Since 2007, the District of Columbia Rules of Professional Conduct have required, at Rule 1.5(b): When the lawyer has not regularly represented the client, the basis or rate of the fee, the scope of the lawyer’s representation, and the expenses for which the client will be responsible shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation.

This letter confirms the terms and conditions of my work for you. Although currently you are retaining me only with respect to the Matter, the following description of billing policies and scope of engagement is intended (in the absence of a later writing confirming alternative arrangements) to apply as well to any future service that I may provide to you on other matters. Invoices. I will establish a separate invoicing account for you and intend to bill you occasionally for my fees and expenses. You will be charged for time, generally calculated to the nearest tenth of an hour, plus costs incurred on your behalf other than routine office expenses. Expenses that are not routine office expenses include but are not limited to travel, international long-distance phone calls, photocopies of more than a routine number, printing charges, overnight mailing, and any recording, filing, registration, or professional service fees and court costs. My current hourly billing rate is $xxx per hour. These rates are subject to a small annual increase, and I would be happy to provide you current rate and fee information at any time upon your request. I will make every effort to have all work done in the most cost-effective manner consistent with good professional practice. Time. Time includes all time in communication with you in person, by e-mail, phone, or correspondence, as well as time in communication with others, such as municipal personnel (including the code enforcement officer or building inspector), the municipality’s lawyer,

Your Winning Team 31 your surveyor or real estate agent, and so forth. It involves reading, writing, analysis, and, to repeat, telephone calls. Time includes legal research, factual research, preparing letters and documents, preparing for a hearing, travel time, and so forth—as well as actual hearing or court appearances. If an activity is for your benefit in this Matter it is charged. Time to repair a computer, charge my cell phone, sweep the floor, or otherwise maintain the office is not chargeable to a client. Retainer. In signing this letter, you agree to pay me a retainer in the amount of $x,xxx, which is earned upon receipt. This retainer is nonrefundable and represents your fee for my initial specific guidance in the field of federal law on antenna support structures, even if I do no further work for you. It is highly unlikely that it will cover the entire cost of services. If I do further work for you, I will not charge for the early hours of the engagement until all of the retainer has been applied, and I begin billing at the full rate of $xxx per hour, plus disbursements. When I notify you that I have applied the entire retainer, I may ask you to replenish it within 15 days in an amount appropriate at that time. The retainer will be applied to both fees and costs. Withdrawal. Bar rules allow a lawyer to withdraw from a case in which the client disregards financial obligations to the lawyer. Bar Memberships. I want you to be clear as to what I am agreeing to do for you. I am a member of the Bar in the State of Maine, as well as the District of Columbia. I am familiar with the federal law of preemption with respect to antenna support structures, as well as ancillary related law in several jurisdictions. I am not a member of the bar in Pennsylvania. Should local counsel be required, we will talk about whom to select for that purpose (although [Name] seems like a pretty good choice), as local counsel can often make things happen that no one else can, and, as is my standard practice, I would act as a consulting attorney to the local attorney. Retention of Records and Files. All records and files will be retained and disposed of in compliance with a policy in effect from time to time. Subject to future changes, under the current policy, records are not retained for more than five years from the date the matter is opened. Upon your written request, files will be returned to you prior to destruction. However, it is not administratively feasible to notify you in advance of destruction. I therefore recommend that you maintain your own files for reference, or make a written request for your files at the conclusion of a matter. If you have any questions about the records retention policy, please ask. Please sign and return. I hope this letter satisfactorily describes our relationship. If these terms are acceptable, please sign this letter and return it to me along with your check for $x,xxx. Your signature will acknowledge that you have read the letter carefully and consent to its terms, and that you have retained a copy for your files. If you have any questions about this letter or my services, please do not hesitate to call me. Sincerely, Fred Hopengarten Agreed: [Name of Company] by [Name of Officer, Title]

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Atty. Phil Kane’s Retainer Letter Client: Date: Dear [Name]: It was a pleasure conferring with you [Conference Details]. I have enclosed our standard hourly fee agreement that the State Bar requires when legal services are rendered of a possible value of $1,000 or more, to protect both the client and the attorney. Please initial each page, sign one copy on Page 2 (as I have done), return one copy in the enclosed envelope, and retain the other for your files. I would also ask that you sign and return three copies of the “Designation of Attorney” statement. At times I have run into other parties and attorneys who require such written designation. I thank you for your consideration in hiring us to do this project, and I look forward to the next phases. Sincerely, Phil Kane —AGREEMENT— ATTORNEY–CLIENT FEE AND REPRESENTATION AGREEMENT Hourly Fee This document (“agreement”) is the written fee contract that California law requires lawyers to have with their clients. We (Philip M. Kane d/b/a Communications Law Center) will provide legal services to you ([Client Name]) on the terms set forth below: 1.

CONDITIONS. This agreement will not take effect, and we will have no obligation to provide legal services, until you return a signed copy of this agreement and pay the initial deposit called for in Paragraph 4 below.

2. SCOPE OF OUR SERVICES. You are hiring us as your attorneys, to represent you in connection with the matters listed on the Schedule of Details attached. We will provide those legal services reasonably required to represent you. We will take reasonable steps to keep you informed of progress and to respond to your inquiries. Our services will only include litigation of any kind, whether in court, in administrative hearings, or before government agencies or arbitration tribunals, as specified on the Schedule of Details attached. If other litigation is required, a modification of this agreement will be necessary. 3. YOUR OBLIGATIONS. You agree to be truthful with us, to cooperate, to keep us informed of any developments, to abide by this agreement, to pay our bills on time, and to keep us advised of your address, telephone number, and whereabouts. 4. DEPOSIT AND FEES. You agree to pay us an initial deposit of $[Initial Deposit] by [Initial Deposit Date]. Of the initial deposit, $[Initial Fee] will be our minimum fee, paid in exchange of our agreement to represent you. The minimum fee is nonrefundable, but our hourly charges will be credited against it. The remainder of the initial deposit, as well as any future deposit, will be held in a trust account. You authorize us to use that fund to pay the fees and other charges you incur. Whenever your deposit is exhausted, we reserve the right to demand further deposits, each up to a maximum of $[Deposit Cap]. You agree to pay all

Your Winning Team 33 further deposits within [Deposit Days] days of our demand. Except for the minimum fee, any unused deposit at the conclusion of our services will be refunded. 5. LEGAL FEES AND BILLING PRACTICES. You agree to pay by the hour at our prevailing rates for time spent on your matter by our legal personnel. Our current rates for legal personnel (and other billing rates) are set forth on the attached Schedule of Details, which also provides for periodic increases. 6. COSTS AND EXPENSES. In addition to paying legal fees, you agree to reimburse us for all costs and expenses including, but not limited to, fees fixed by law or assessed by public agencies, telephone toll calls (including telefax and electronic mail), messenger and other delivery service fees, process server fees, postage, in-office and outside service duplication and copying charges, mileage at 25 cents per mile, investigation expenses, consultant fees, and other similar items for which we bill you. You authorize us to incur all reasonable costs and to hire any investigators or consultants reasonably necessary in our judgment. 7.

STATEMENTS. We will send you periodic statements for fees and costs incurred. You will pay any outstanding balance due within fifteen (15) days after the date of each statement. You may request a statement at intervals of no less than thirty (30) days. Upon your request we will provide a statement within ten (10) days of request.

8. LIEN. If your matter relates to recovery of money or monetary damages, you hereby grant us a lien on any or all claims or causes of action that are the subject of our representation of you under this agreement. Our lien will be for any sums due and owing to us at the conclusion of our services. The lien will attach to any recovery you may obtain, whether by arbitration award, judgment, settlement, or otherwise. 9. DISCHARGE AND WITHDRAWAL. You may discharge us at any time. We may withdraw with your consent or for good cause. Good cause includes your breach of this agreement, your refusal to cooperate with us or to follow our advice on a material matter or any fact or circumstance that would render our continuing representation unlawful or unethical. When our services conclude, all unpaid charges will immediately become due and payable. After our services conclude, we will, upon your request, deliver your file to you, along with any funds or property of yours in our possession. 10. DISCLAIMER OF GUARANTEE. Nothing in this agreement and nothing in our statements to you will be construed as a promise or guarantee about the outcome of your matter. We make no such promises or guarantees. Our comments about the outcome of your matter are expressions of opinion only. 11. EFFECTIVE DATE. This agreement will take effect when you have performed the conditions stated in Paragraph 1, but its effective date will be retroactive to the date we first performed services. The date of this agreement recorded below is for reference only. Even if this agreement does not take effect, you will be obligated to pay us the reasonable value of any services we may have performed for you. Dated: ⬍Date: ⬎ _______________________ Philip M. Kane d/b/a Communications Law Center __________________________

[Client Name] [Client Officer]

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Schedule of Details A. IDENTIFICATION Client: [Client Name] [Client Address Line1] [Client Address Line2] [Client Telephone] Matter: [Matter Info] Reference: [Number/Matter] Litigation Included: [Litigation Covered] B. HOURLY BILLING RATE FOR LEGAL PERSONNEL Rate Schedule: [Rate Schedule] Attorney: $[Attorney Rate] Paralegal: $[Paralegal Rate] Law Clerk: $[Clerical Rate] C. STANDARD CHARGES We charge in units of one-tenth of an hour (6 minutes). Minimum charge for in-office consultation is one-half hour (30 minutes). Minimum charge for appearances at depositions, hearings, or trial is three (3) hours. D. RATES SUBJECT TO CHANGE The rates on this Schedule are subject to change upon 30 days’ written notice. If you decline to pay any increased rates, we will have the right to withdraw as your lawyers.

3.2.3.3 Where Will It Hurt? Believe it or not, lawyers are pretty efficient writers, but they are horribly inefficient at travel and hearings. On the other hand, there is little they can do about that. It takes what it takes to drive somewhere. Upon arrival, the course of the evening is out of the lawyer’s control. It could stretch out for more than four hours from time of arrival to the end of the hearing and may even require sitting through the decision. Your attorney must then drive home. It is your obligation to pay for all of that time. Between driving, waiting, the hearing, and the decision, you could pay for a lawyer’s time from 5 p.m. to midnight. That’s seven hours. You need to be calibrated (see Table 3.1). Now you need to ask yourself if it is worth it. If you are going to maintain this structure for 10 years, and your total legal bill comes to $8,000, that’s $800 per year. Perhaps your time frame is 20 years, with a legal bill of $2,000, coming out to only $100 per year. This is before looking at questions such as points, closing costs, the fees of real estate brokers, and so forth.

Your Winning Team 35 Table 3.1: Potential Lawyer’s Fees for the Evening of a Hearing Hours

Rate ($/hour)

Bill for the Hearing ($, plus expenses)

7 7 7 7 7 7 7 7

130 150 175 200 250 300 400 500

910 1,050 1,225 1,400 1,750 2,100 2,800 3,500

On the other hand, bankers routinely assign what they call “stick value” to your antenna system when considering its value as collateral for a loan, and they are not stupid. They understand that it can be painful and time consuming to erect an antenna system and that an existing antenna system, in itself, has value—especially if you own the tower and someone else might like to come along later and rent space on it. Applying for an antenna-support structure in a town where the application is likely to be contested is not for the faint-hearted. On the other hand, as you can see from the instructions to clients above, dramatic amounts of money (except for the evening of the hearing) can be saved. Finally, please accept this advice: Winning at the hearing level, at almost any price, is less expensive than losing, appealing, winning, reapplying, and reappearing for a new hearing. So, what’s the secret? Prepare thoroughly and well for the first hearing, and do as much work as possible yourself.

3.2.4 Registered Professional Engineers In general, except for towers over 200 feet or situations with tricky soil questions, it should not be necessary to hire a registered professional engineer. (It may be required by the Planning or Building Department, but that’s another story.) However, if you should be so lucky as to have a PE (the usual designation) available to you, there are several elements of the application that might involve such a person and the seal might lend credibility to your application. This is not to say that another person, perhaps even you, might not produce the right kind of information. It is, however, undeniable that if you show up with a panel of experts, ready to exhaust the evening (and the Board) with expertise, you are limiting the battle to areas where opponents will feel that they have the most legitimacy in commenting and the greatest likelihood of persuasion—looks, radiofrequency (RF) danger, and so forth. What does this mean in real life? It means that if a member of the audience stands up and foolishly says that the RF energy from your antenna system is going to make beepers go off or sizzle eyeballs for a radius of three miles, you can quite correctly cite the federal statute, 47 U.S.C. §302a, as well as the cases of Broyde v. Gotham Tower, Southwestern Bell v. Johnson County, Freeman v. Burlington Broadcasters, and others (see Chapter 8), to show that the Board should not even consider the issue of interference. See filenames Broyde v. Gotham Tower.pdf, SW Bell Wireless.pdf, and Freeman

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v BurlingtonBroadcasters.pdf on the CD. You can also provide your own printout of OET-65 calculations from filenames FCC OET-65.pdf and FCC OET-65 Supplement B.pdf on the CD. Even though you could quite correctly do all of the above, it wouldn’t hurt to introduce your friend, the so-and-so Professor of Physics at Local University, who has prepared a study that is signed over his name, complete with Ph.D., academic appointment (on academic or consulting firm letterhead), and PE seal—that nice round seal can be very persuasive. If the PE is prepared to respond to any questions, the Board may quickly decide that RFI and EMF issues need not be considered intensively. If you don’t have such a friend, you don’t have such a friend. If you do, however, and that friend owes you one, this is the time to take advantage of the friendship. A PE can be used (according to the fields in which he or she feels comfortable) to: ●

Produce maps showing where the wetlands start and where the buffer zone starts.

●

Produce an exhibit on propagation, showing why the height you have requested is required.

●

Produce an exhibit on RF safety.

●

Produce an exhibit showing a proper grounding plan.

●

Produce an exhibit showing that all of the proposed construction is safe and consistent with the state building code.

A PE can also answer and dispose of the question: “Won’t this structure attract lightning?” A PE can also be especially handy if for some good reason you are not following manufacturer’s installation drawings exactly. Note that the Building Inspector often allows construction built without the seal of a PE. After all, we’re not talking about a skyscraper here, a building that could endanger thousands. It’s just an antenna system! Any Building Inspector, after reviewing the manufacturer’s specifications in view of the variation you propose, should be able to make the decision without a PE’s seal. But, if the Building Inspector insists on a PE stamp, there is probably very little you can do about it.

3.2.5 Seals Welcome to the world of PE seals. There are wet seals, where the seal is applied to your drawing, and dry seals, where you submit a copy of a drawing that had a wet seal at one time. Obviously, a dry seal is cheaper (the price of a photocopy) and no liability attaches to that copy. Most tower manufacturers can provide you with drawings bearing dry seals. It could be free or there might be a charge. The manufacturer’s PE, however, may not be licensed in your state or the seal may not show that the PE is licensed in your state. The dry seal will only apply to the standard drawing in the catalog and will specify standard conditions (which you may or may not meet). If you can get through the process with no seal, or only a dry seal, so much the better. This is a subject for discussion between you and the Building Commissioner, when you go to ask: “What kind of documentation will I need to get through this process?” During that conversation, be sure to ask: “If I’m following the manufacturer’s installation instructions; do I need sealed drawings?

Your Winning Team 37 If yes, will you accept a dry seal?” The reason you want to proceed with no seal, or a dry seal, is that you will save a lot of money. On the other hand, if you are doing something unusual, you may want to hire a local PE, especially if you need a good understanding of how to install the base and anchors in your own special circumstances (usually circumstances in which “normal” soil conditions do not apply—such as sand or swamp). If normal conditions do not apply, the Building Inspector may want your plans to bear a wet seal, for your benefit and to protect the public. For a price, you can always find a PE who will review or create drawings, modify them as necessary, and provide a wet seal for your project. That’s the business that engineering firms are in. Nonetheless (and you certainly won’t welcome this), the Building Commissioner could require a wet-stamped geotech report—a report on geotechnical conditions, describing the soil, rock and so forth, as well as recommendations as to the foundation required. Then, in accordance with the geotech report, the Building Commissioner could require a PE report which matches the soil conditions and foundation to the tower. There is an additional question of whether or not your Building Inspector cares to note the specialty of the PE, whether the PE’s seal indicates the specialty, and whether the specialty is relevant. Finally, there are “in-state” and “out-of-state” seals. What does that mean? Let me speak from my experience in Massachusetts. Often, an ordinance is vaguely written; for example, “Applicant shall submit a sealed drawing showing ….” or “Applicant shall submit a drawing bearing the seal of a registered professional engineer showing ….” This clearly means that a stamp must be on the drawing. Some engineers have taken and passed the examination to become a registered professional engineer in electrical engineering. They are qualified in electrical engineering. They have not qualified in mechanical engineering. But, this doesn’t end the discussion. Assume that the seal notes the specialty. In my view, a PE in electrical engineering could easily certify that a certain tower will perform safely as a freestanding antenna. To the casual observer, looking only for a seal of any kind, that may be enough. Many PEs have seals that do not indicate a specialty. Few Building Inspectors, especially those looking at an antenna (as opposed, for instance, to a high-rise building) will enquire behind the seal. One strategy: The PE could write you a letter saying what he is certifying and seal the drawing. The applicant might submit only the drawing. If the applicant is later asked for the meaning of the seal, simply produce the letter. Some states have broad laws. A PE may take the exam and practice in one field but have broad “sealing” rights. This is akin to the fact that a medical doctor (MD) may theoretically treat any disease, even though he or she is qualified only in a specialty. For example, my wife is a board-certified and wonderful psychiatrist (MD). She did her residency in the Harvard Medical School’s residency program in psychiatry at Massachusetts General Hospital (known locally as MGH, or Man’s Greatest Hospital). She has a doctorate from Yale in pharmacology. She is great at working with modern psychotropic medications. (Yes, I’m bragging. I married up.) But God help the patient if she were ever to perform surgery. Yet, her license does not prevent it. Similarly, lawyers may tackle any legal

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problem, once they have passed the bar exam. I like to think I am a good lawyer, with a reasonable understanding of business. But God help the client if I were ever to do any criminal defense work. Thus, broad qualification is not uncommon. The burden is on the professional to limit his or her own exposure to risk of malpractice. So, you may find an individual with a seal from your state (or from elsewhere) who will seal your drawings and thereby end some nonsensical requirement that a town drafted without an understanding of the issues involved in antennas. There is no harm in asking. Finally, there is the question of whether or not your Building Inspector will require a seal from a PE licensed by your own state. It turns out that engineering is way ahead of law and medicine in this regard, permitting—in effect—multistate practice. As best I understand the Massachusetts statute, professional engineers need only register with Massachusetts if they regularly practice or maintain offices there. This is not true of doctors and lawyers, who must be locally licensed first. (Actually, and speaking generally, lawyers can practice anywhere in the United States if the state work is ancillary to a project involving federal law, which is why I represent people who wish to erect antennas all over the United States, but that’s another story. If you must investigate this angle, see Model Rule 5.5 of the American Bar Association’s Rules of Professional Conduct.) Nonetheless, do not lose hope, and stay in touch with your PE. Professional engineers have a national organization to which they can pay a small fee and get a current license in your state, even if it is only for the purposes of putting a seal on this one document. The cost for qualifying in a different state is very reasonable (approximately $100 in 2008). So, there you have it. Bottom line: Make the Building Inspector your friend. He has within his power the ability to make it hard for you to meet the requirements of the building code. How? He could require, worst case: (1) a wet seal from (2) an in-state PE who (3) is a specialist in the subject matter of concern (e.g., structural, electrical, acoustical). The Building Inspector can also make it easier for you to meet those requirements (by accepting, as a best-case example, a dry seal from an out-of-state PE who is not necessarily a mechanical engineer). I hope you’ve enjoyed this discourse on seals, the product of some considerable learning in the school of hard knocks.

3.2.6 Surveyors Many zoning codes require the submission of a scaled drawing showing the boundaries of the property, location of all significant structures, setback lines, distances to neighboring structures, at a certain scale and on D-size or larger drawings, and so forth. Most lawyers can tell you from hard-won experience that neighbors may not agree on where the property line is located. Sometimes, getting out there to do the measuring can be a problem. Sometimes it can be really important to know how the land slopes (to justify height), or where trees are located (to assure neighbors that their views of your antennas will be obscured by these trees). This is exactly the kind of work that surveyors do. Here are a few real-life examples.

Your Winning Team 39 One tower erector accidentally put a guy anchor a foot or two onto a neighbor’s property. It was totally innocent but it happened. Though he later removed the first anchor and installed a new anchor, a few feet closer to the structure (this time allowing a margin of safety with respect to the property line), he was mercilessly attacked as someone who could not be trusted to do anything right. An applicant hoped to put his antenna support structure as close to the rear right-hand corner of his lot as possible. This meant putting one guy anchor as deep into the right-hand corner as possible so the two other guy wires, spaced at 120°, would stay out of a grass field. Everyone agreed that the really big tree in that corner was planted on the corner (many years ago), but no one was sure of the angles for the property lines from there. If you make a mistake of 5° at the corner, you are way off (as measured in feet) when you get to the other side of the property, 200 feet away. A surveyor solved the problem. A broadcaster put a guy anchor within the company’s property but within the required setback, so the “required yard” (the space between any construction and the boundary line) did not exist. Subsequently, it was necessary to move the guy wire set. While your survey map from the mortgage paperwork may be adequate for drafting the property map, it could be very important to hire a surveyor to lay out a valid property line and a valid construction envelope. This works the other way, too. A neighbor of mine had an Invisible Fence installed inside my own property, and the installer cut 50 buried radials for my ham radio vertical antennas in the process. It seems that she thought she knew where the property line was located, and the installer just assumed it would do no harm to install the buried wire a few feet further into the woods. Between the two of them, the error amounted to 27 feet! Surveyors are a lot less expensive than lawyers. Ask someone in the wood fence business how they make sure they are not installing “over the line.” You could get a good tip or two. Eventually, you’ll have to produce a plan for incorporation in your application. Since it can affect placement of the antenna, this should be one of your early steps in the planning process. Remember that it is far easier to determine property lines before the snow starts to fly!

3.2.7 Environmental/Regulatory Consultants Depending on the piece of property, you may need any of the following: ●

National Environmental Policy Act (NEPA) screening

●

NEPA Section 106 report (including the filing of FCC forms 620 or 621); see 47 CFR §1.1308

●

RF exposure (sometimes called an electromagnetic field, or EMF) analysis (see OET-65)

●

Report on Native American (tribe) consultations

●

Wildlife habitat survey

●

State Environmental Quality Review Act (SEQRA) activity

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Chapter 3 ●

●

City Environmental Quality Review Act (CEQRA) activity Environmental assessment, perhaps including a review of the “viewshed” and a submission to a State Historic Preservation Office (SHPO)

●

Wetland consultation (this is where those hay bales and plastic fences originate)

●

Endangered species consultation

●

Flood zone consultation

Thanks to IVI Due Diligence Services, Inc. (White Plains, NY; http://www.ivi-intl.com/) for the list. Forgive me if all of this sounds frightening. It should be, which is why you may need a team to help out. (Nonetheless, this book can help you manage this team.) Don’t you just love the environmentalist legislators who have caused the need for all these consulting services?

3.2.8 Real Estate Agents As you will see elsewhere in the book, a real estate agent is not necessarily an appraiser; however, some real estate agents are also appraisers. Asking a real estate appraiser to perform a study for you is going to cost you the appraiser’s fee. In the end, the Board may accept or reject the evidence of the appraiser. It may even reject the evidence of the appraiser if it is unopposed. You never know. Nonetheless, if you are concerned that the “real estate values will fall” argument will come up, and if you have a friendly real estate agent upon whom you can call, several strategies become available. 3.2.8.1 Testimony You may invite the real estate agent to speak at the hearing. This should be brief. If you assemble all the numbers, the agent may also be convinced to say that the study you have assembled from public data correctly states the situation, as the agent understands it. 3.2.8.2 A Letter Even if the agent has agreed to appear, you can prepare a letter to be printed under the agent’s letterhead that succinctly states your position. This serves two purposes: 1.

If the agent is unable, for whatever reason, to appear the night of your hearing, the testimony is still entered. Remember, your hearing could be continued to another night before the agent has an opportunity to speak.

2.

The process of reviewing the letter you have prepared for the agent will keep the agent on-track and succinct and will reassure the agent about exactly what is being asked.

Here is a sample letter you’d like to receive from the real estate agent. You will find it on the CD as filename Real Estate Agency Assessment.doc.

Your Winning Team 41 [On real estate agency letterhead] Date Town of Friendlyville Board of Appeals Town Hall Friendlyville, MA To the Board: In re: Application of WZZZ-TV I have been asked to comment on the question of whether or not the presence of a visible radio antenna system, [xxx] feet tall or less, has an impact on the value, selling price, or speed of sale of a neighboring home. I have been a licensed real estate [appraiser/agent/broker/representative] since [year], having participated in sales [appraised properties] with values exceeding $[amount]. [Allow the real estate person to toot his or her own horn. It’s good for business.] I am familiar with the market in Friendlyville. I have examined the spreadsheet of assessor’s values attached, assembled by the Applicant, and believe them to fairly and accurately represent town records. There are many elements in any given transaction, and it is possible that an anecdote may be produced to show that a particular buyer was discouraged by the nearby presence of an antenna system. Yet, it is my experience that the spoken reason and the real reason for deciding against a purchase do not always coincide. It is my professional opinion that the existence or nonexistence of a visible radio antenna system [xxx] feet tall or less has no impact on the value, selling price, or speed of sale of a neighboring home when located [xxx] feet away. Sincerely, [Name] Attachment: [valuation spreadsheet of the kind described in Chapter 8]

3.2.9 Contractors Thanks to the folks at http://www.wirelessestimator.com for much of the following: Licensed General Contractor, Class A General Contractor, Certified General Contractor, Commercial Contractor, Structural Steel Erection, Construction Supervisor—the ad nauseum list by states and municipalities to describe the license and requirements to operate as a general or specialty contractor has only one commonality: Do not, do not, do not make any licensing requirement similar to another state or city that might display a hint of continuity or contractor convenience. Some officials, thankfully, are rejecting popular government lore that attempting to combine “contractor” and “convenience” causes head implosion … and, as we are all aware, head implosion expenses do not go toward your deductible with most PPO plans.

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The nature of wireless construction and broadcast tower projects requires contractors to work in more cities and states than most other industries. Attempting to identify licensing requirements is difficult at best. Wireless Estimator (http://www.wirelessestimator.com/statelic.cfm) provides a service to its registered users detailing available licensing requirements, with links to state licensing boards and to each state’s Secretary of State. This is helpful when contractors need to obtain Certificates of Authority to enable their companies to conduct business in various states. Where required, you will also be able to identify whether a contractor is licensed in each state. Many states allow their cities and municipalities to set licensing standards. Some states will allow licensing reciprocity. California doesn’t; it’s either their way or the Pacific Coast Highway. Kinder, gentler Louisiana has reciprocity agreements with the licensing boards of Arkansas, Mississippi, North Carolina, and Tennessee. You get the idea. Don’t assume a contractor has a license. Ask to see a copy, along with your usual request for proof of worker’s compensation insurance, as well as liability coverage.

C HA P TER 4

Basic Preparations

“The will to win is nothing without the will to prepare.” —Eduardo Alejandro Polon, Boys’ Varsity Soccer Coach, Sandy Spring Friends School, Sandy Spring, MD

Once you’ve assessed your team needs, you can begin evaluating what you’ll need for materials, so that you may move forward.

4.1 Materials You Will Need 4.1.1 Bound Notebook Anyone who has ever done lab experiments will tell you that a bound notebook can be very helpful. On the day you decide you want an antenna system, start keeping a notebook. As you learn the names of people in the neighborhood of the proposed antenna system (as well as the names of spouses, children, dogs, and the “cousin who is an engineer”) and as you take notes on what those people say to you, you could wind up with a lot of pieces of scrap paper. You may forget to date or file each scrap. Use a bound notebook and paste or tape these miscellaneous pieces of paper into it. This way, even if you don’t date a particular entry, it can be placed in time approximately by what comes before or after it. This is the voice of experience talking. Buy an expensive ($5) bound notebook—not a drugstore 99¢ notebook. Most good notebooks have a pouch in the front (or the back) where you can temporarily store pieces of paper that you intend to file or paste into the notebook later on. Even if you are a whiz with your Palm Pilot or equivalent personal digital assistant (PDA) or perhaps you have a netbook computer, those devices offer no easy way in the field to file a business card or a map. This whole process is going to stretch out over a number of months and will involve names of owners, tenants, wives, children, competitors, town officials, and members of your own team (discussed in the previous chapter), as well as telephone numbers, fax numbers, e-mail addresses, to-do lists, documents needed, maps to obtain, and so forth. You will need a good notebook!

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Furthermore, if you want to draw something out for someone and keep a record of what you showed that person, draw it in your notebook and show it to him. You might even ask him to initial the drawing once you have finished your explanation. This avoids the ugly claim: “When the applicant came to my house and explained what he was going to do, what he drew out for me was very different than the application now in front of you. If I had known then what I know now, I never would have signed that letter saying I have no objection.” (If he doesn’t want to initial a drawing for fear that his initials will later be interpreted as agreement, have him write “Seen [date]” and initial that.)

4.1.2 Loose-Leaf Binder and Section Dividers A separate three-ring binder for other 8.5 ⫻ 11-inch papers is a good idea, too. Along the way, you’ll be collecting a lot of documents that won’t conveniently fit in your bound notebook. One good way to keep them organized is to punch them and tuck them into your three-ring binder. Don’t forget that you’ll also need a three-hole punch. While this discussion centers around the concept of hard copies, this is a good time to mention that you’ll be collecting digital material, too. When you find something useful in digital form (an aerial photograph from your state’s GIS system, for example), file it electronically. It is a total waste of time, and results in degraded quality, if you print it out and try to scan it back into digital form later. For the moment, however, we’re talking about hard copies. Following is a list of section dividers you may find useful. 4.1.2.1 My Property Documents ●

●

●

Topographic, road, or aerial photograph maps—It is no longer necessary to scan a U.S. Geological Survey (USGS) map. They are available in digital form (e.g., http://www.acme. com/mapper/, http://maps.live.com, http://www.topozone.com, www.earth.google.com). USGS topographic maps can be downloaded as PDF files from the USGS at their online store (http://store.usgs.gov/locator). The USGS site has maps that are available at various scales, and there is a link to an Adobe tool for more features. Plot Plan—The mortgage plot plan is usually good enough. Neighborhood map—Sometimes called an assessor’s map, this map shows every lot in the neighborhood and its owner. You’ll want a hard copy to map the neighbors, but the application will use an electronic copy.

●

Photos—Actual prints can be useful for discussions in the field.

●

Letters

●

Other

4.1.2.2 Local Law ●

●

●

Zoning bylaw—may or may not be available in digits; it depends on the municipality. Building Permit application form—Some communities now post the form online; a few permit electronic filing (very few). Special Permit application form

Basic Preparations 45 ●

●

Specialty bylaws Wetlands Protected ridge or steep slope Lake area Scenic road Wireless Overlay District Photocopies of prior antenna applications and decisions involving this tower or others

4.1.2.3 State Law ●

●

Building code (relevant sections only) Special state laws Wetlands Protection for utilities (sometimes useful for cellular telephone)

4.1.2.4 Federal Law ●

Radiofrequency interference (RFI) preemption (preventing someone from claiming that you should not receive a permit because of potential interference)

●

Electromagnetic field (EMF) law (governing exposure to electromagnetic fields)

●

Zoning preemption for AM radio (47 CFR §§97.189 and 97.190)

●

Case law

4.1.3 Miscellaneous Issues Reproduced below is a handout for several lectures I have given over the years. Documents You May Need Experience has shown that it is useful to collect the following documents before applying for a permit for an “antenna-support structure and appurtenant antennas.” Unless it is over 200-feet tall, please don’t call it a tower, since federal (and some state) laws may protect the antennasupport structure (the words sometimes found in the law) you hope to erect. The building code is also likely to refer to it as an antenna-support structure. There is no need to muddy the waters by using a different description of the project.

Include as Background ●

An original, recent copy of your town’s zoning bylaw or ordinance and any amendments not included in the printed, compiled text. Do not—repeat, do not—rely on statements by the Zoning Enforcement Officer or his or her secretary as to what it says. The printed ordinance is where you will find height and setback rules. Do not settle for a photocopy of

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Chapter 4 what someone tells you is the “relevant page.” That is complete nonsense, and dangerous— dangerous—to your cause.

●

Be absolutely sure, as if your life depended on it, that you know in what zone you are located. They don’t call this a zoning bylaw for nothing. You’ll need to know the minimum yard, setback, and height (the “dimensional”) regulations for your zone. This is, of course, another reason why you need a copy of the entire zoning bylaw. (Source: town clerk or secretary in the planning, zoning, or building department.)

●

An original, recent copy of your town’s wetlands protection bylaw or ordinance, with a wetlands map, and any regulations issued by the Conservation Commission. This is where you will find information on jurisdiction and application procedures. (Source: Conservation Commission.)

●

Two copies of any form used by the town to apply for a Building Permit, Special Exception/ Permit or Conservation Commission proceeding. Having two copies allows for the possibility of an error requiring you to start again. Then, again, you may be one of those people who does everything right the first time. (Do you do crossword puzzles in ink?) (Source: Building Department or Conservation Commission; sometimes the town’s website.)

●

If a 110 V or 220 V AC line will be run out to the base of the tower, include two copies of any form used by the town to apply for an electrical permit. Again, having two copies allows for the possibility of an error requiring you to start again. (Source: Building Department.)

●

The requirements of your state or local building code dealing with wind load. In other words, will the Building Inspector require your proposed structure to withstand 50 mph winds with 1 inch of radial ice? Or 30 pounds per square foot of wind load (which translates to 83 mph)? You need to know the exact requirements so your application will match them. (Source: state or local building codes, found at either the Building Department or the town library.)

●

The USGS topographic (7.5-minute) quadrant map showing your location. It may prove useful by showing that you need more height to overcome a particular line-of-sight path because of a nearby ridge. (Source: local camping, hiking, or bicycling store or Government Printing Office store or 1-888 ASK-USGS; usual cost about $5.) It is no longer necessary to scan USGS maps, as they are available in digital form. USGS topographic maps can be downloaded as PDF files from the USGS at their online store (http://store.usgs.gov/locator). The USGS site has maps that are available at various scales, and there is a link to an Adobe tool for more features. Commercial software is available from DeLorme (http://www. delorme.com) and National Geographic (http://www.topo.com). See also http://www.acme. com/mapper/, http://maps.live.com, http://www.topozone.com, or www.earth.google.com.

Include as Exhibits ●

A neighborhood plan showing the lots and streets in your area—This will orient the Board. It is best if this plan also shows where buildings are located on the lots. It may also be helpful to add distances to those buildings. This is often called an assessor’s map or a tax map. (Source: town’s planning and zoning department or the assessor’s office.)

●

A plot plan, showing the outline of any buildings on the site of the proposed antenna-support structure—Add distances from the antenna-support structure to the lot lines. Normally, this would be the distance to each side-lot line and the distance to the rear-lot line (three measurements). Be sure that the two distances, from side-lot line to structure and from

Basic Preparations 47 structure to side-lot line add up to equal the actual distance from side-lot line to side-lot line! (Hey, benefit from my mistakes!) Consider including the tree line to show where views are screened. To add trees, scan the plot plan and use a computer drawing program. Think about showing the required yard (the setbacks). (Source: plot plan included with mortgage papers, which should be adequate unless you’ve added to your building.) ●

A copy of your FCC license—Though not required, it would be better if it shows as the address the place where you intend to erect your antenna system. If it does not, someone may ask about that discrepancy, despite the fact that it may be irrelevant. See if you can get a corrected printout of the license address by using the Universal Licensing System (ULS). If you are a broadcaster, this can be a “chicken and egg” problem. Should you seek a major change (or a minor change) if you haven’t yet obtained zoning permission? Or, should you seek the change and then seek zoning? Ask Federal Communications Commission (FCC) counsel about the time frames involved, as you could lose your option on a property before the FCC acts.

●

The specification sheets from the manufacturer for your brand and model of antenna-support structure—If possible, it should specify model number, height, load (weight expressed in pounds and maximum wind load in square feet at a certain wind speed, or pounds per square foot of air pressure). It is best if the wind speed is expressed in the same units of measure that your state building code uses. For these purposes, you’ll need to know if your state now uses the International Building Code (IBC), Uniform Building Code (UBC), or Telecommunications Industry Association/Electronics Industry Association (TIA/EIA)-222 (and which version of TIA/EIA-222), or some combination. Exactly which code is in effect in your jurisdiction has been a moving target in recent years.

●

The construction plans for the base and erection of your antenna-support structure (including guying, if appropriate)—The more it looks like a draftsman’s or architect’s rendering, the more effective it will be. Try to get a version with a dry seal of the manufacturer’s professional engineer (PE) printed on it. Your building inspector may be even more demanding, and require a geotech report, which addresses the ability of the soil to bear loads. Except for small, standard towers, these matters are all likely to be handled by your civil or mechanical engineering firm or your tower manufacturer.

●

The specification sheet(s) for any proposed antenna(s), showing weight (expressed in pounds) and wind load (expressed in square feet).

●

The specification sheets for your rotator, or motorized system within a radome, showing weight (expressed in pounds or kg), if you will be rotating anything. Having said that it would be good to have a spec sheet for any motorized system, I will admit that I’ve never been asked for such sheets.

●

If you are moving the antenna system from a prior site, include a suitable digital photograph in the application—Suitable means a photo that demonstrates that the antenna system doesn’t create aesthetic blight! One frequently used view is one taken from the street (public way) in front of the plot, at high noon, since it will show less reflection off any aluminum.

●

A letter of permission to act as an agent for the landlord (if the applicant is not the land owner).

●

A copy of your commercial general liability (CGL) insurance policy, or at least a cover sheet from your insurance agent stating your coverage (which may include an umbrella policy).

●

Letters of support, or at least letters that express “no opposition to the grant of a permit,” which you have drafted and the neighbors or other tenants (on the lot or on the tower) have signed.

●

A printout for your station, using a worst-case analysis of the RF safety (RF emissions) issues. This will show compliance with federal regulations in this area.

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4.1.4 Great Impressions Help Deliver Great Decisions You will never make a great impression with a handwritten scrawl on a town form, nor with an application that does not permit the Board to understand what you intend to do. This is major-league selling, and all of the modern tools of selling will prove helpful: ●

Including color printing

●

Including a cover page and a table of contents

●

Including an executive summary

●

OCR-scanning forms so they can be filled out on your computer

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Reproducing photographs and labeling them for greater understandability within the application, printed in color

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Creating plot plans with dimensions in different colors

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Shading in trees on the plot plan

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Providing spreadsheets, charts, and graphic explanations

4.1.5 A Picture is Worth 1,000 Words (or a Word is Worth a Millipicture) A 15-foot whip can be truthfully described as either a 2-inch whip or an antenna more than one story tall. When you say that it is but a pencil line against the sky, and nothing more than an overgrown chopstick, a photo will support your statements and really help. When your opponents liken your proposal for a 100-foot structure to a 10-story building in a residential area, a photo will really help if it shows you and a car standing behind, and completely visible through, an antenna-support structure of the same make and model that you are proposing. When opponents claim that there will be a dramatic contrast between the steel structure and the softer forest background, a photo showing a similar structure almost invisible against a forest background will help, especially to forestall a silly requirement, such as having to paint your antenna structure (or at least the bottom part) forest green. Film is inexpensive! Actually, that’s a joke. You won’t be using film for your photographs, because you’ll want to insert photos and photosimulations as, for example, JPEG files into the supplement to your application. Take a tip from commercial photographers and take lots of photos. This dramatically improves your chances of getting a shot or two that will really prove helpful. Be sure to note the camera (and the lens) you use. Later, such data will help to avoid claims that a photograph does not fairly represent the situation. Here are a few tips: ●

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If possible, take the photos you intend to use during the winter. This eliminates the possible complaint at a contested public hearing that you purposely took your photos when all the leaves were still on the trees—and that the proposed antenna system will be more visible when the leaves have fallen. While you and I might think that antennas are majestic, do not stand to the southwest and take the photos at 3 p.m. on a sunny day. This will be the one moment in time when your photo

Basic Preparations 49 might show a glint. Such a photo does not fairly present an antenna system, which is more normally gray against a gray sky, not bright and shiny. ●

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As you go around town to take photographs of “comparables,” do not plan to use photographs of brand-new antennas or brand-new steel structures. While such pictures might enhance the majesty of the antenna system, they do not fairly represent the normal situation. After only a few months of exposure to the weather, both aluminum and galvanized steel take on a dull, nonreflective finish that is more like the U.S. Navy’s “haze gray.” Try to photograph things that have been up more than six months. It is highly likely that your town has a tower for police, fire, or Department of Public Works communications. Find out how high such a structure or such structures may be, for purposes of comparison, and take photos. These photos serve several purposes: 1. They will demonstrate that people have been basically ignoring such a structure for years, even though it may be in a very visible public place. 2. They will show that the metal does take on a dull finish, just as you say. 3. They may provide ready examples of what a VHF ground plane, a corner reflector, a one-meter dish, or a high-gain vertical whip looks like. Emphasize that such antennas are especially useful in emergencies. Play up the public safety angle, especially if repeaters on your tower have snowplows, construction crews, or public utilities (everyone wants to get his power back). If you are a broadcaster, talk about the emergency alert system (EAS).

Finally, remember to label any photos submitted with arguments that help you. Make the labels work for you—for example: “Photo shows antenna system at Applicant’s previous location. Taken on February 12, 2009. Note that structure and antennas have a natural, dull-gray finish.”

4.1.6 Your Camera If you remember nothing else from this section, remember that film is cheap. Oh, I told that joke already. But 1GB of photos can be stored on storage devices (SDs) that cost less than two hot dogs and a soda pop. This cost advantage is especially true when you compare the cost of photos to legal costs. So, take a lot of pictures. If you haven’t taken 75 pictures (to yield the 5 to 15 you’ll use), you haven’t been busy enough with your camera. Your digital camera is virtually essential to produce exhibits in your application and JPEG files for insertion in your PowerPoint. 4.1.6.1 Photo Perspective When you take your photos, always take them horizontally—with the camera’s long length parallel to the ground. This is called a “landscape view.” Putting it another way, the ground should always be on the bottom, the 6-inch side, of a 4 ⫻ 6-inch photograph. Why? Because this makes the photo a fair representation. It puts the shot in context. A normal person standing and looking at an antenna system has a wide field of vision. A narrow, tall portrait field of vision is not representative of reality. If you fear that someone may try to cheat and put forward a photograph that is not a fair representation of an antenna system, you can prepare for this. You can make it plain to the Board that your opponent is

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cheating by taking just two pictures to show what is fair and what is unfair. Start with a photograph of a 10-year-old child (or any child about four feet tall) taken while you and the child are both standing. Now lie down on the ground so the camera is three feet away from the child and point the camera up. Take the picture. When it is developed, the child will look 10 feet tall. Figure 4.1 and Figure 4.2 show two

Figure 4.1 Sander Idelson, KB1FPU, in normal perspective (landscape view).

Figure 4.2 Sander photographed in “Jolly Green Giant” mode. (Photographs courtesy of Jim Idelson, K1IR.)

Basic Preparations 51 perspectives of Sander Idelson, KB1FPU, the son of Jim Idelson, K1IR. Bring these two pictures along to the hearing and hold them in reserve or print out and use the Figure 4.1 and Figure 4.2 photos from the CD. If necessary, you can thoroughly discredit an opponent who tries to present an unfair perspective of an antenna system. The camera you want has a zoom lens so you can frame the photo you want. Do not start thinking about camera techniques that might mislead the Board or a court. Remember, the test of whether or not a photo is admissible in court is whether or not it fairly represents the scene. You do not need to misrepresent anything. 4.1.6.2 A Digital Camera If you have a digital camera, that’s nice, because: (1) you have the chance to see the photo immediately after you take it, permitting you to take another if you don’t like the image you’ve captured, and (2) it saves the scanning step, should you decide to bring the photos into the document instead of simply pasting them onto a page. If the photos are originally digital or have been scanned in, then adding a scaled proposed structure or a red dot in a circle showing where the Yagi will be becomes easier. Don’t even think about film.

4.1.7 Copy of Local Zoning Bylaw Lesson Number One, discussed previously, on dealing with local officials is to get your own copy of the local bylaw or ordinance. This is not the three-volume set on the shelf of the Building Inspector, the one that sells for $300. That’s the building code for construction in your state. What you want is the zoning ordinance or zoning bylaw. It probably has 7 to 120 pages, depending on how intrusive zoning may be in your jurisdiction. In 1999, a copy of the Land Use Ordinance for Oahu, Hawaii, was $8; in Kitsap County, Washington, it was $9. Even now they tend to top out at about $30 or so, and are often available online. You must have your own copy of the whole bylaw and not just the one page that the clerk tells you covers this topic. Why? Among other reasons, you will want to read the Definitions section, sometimes in the first section. You will want to read the section on height in your zone (height may be different in each of an industrial, rural, farming, residential two-family, or residential single family district—if your town has such districts). You do know your zone, don’t you? You will also need to know about the required setback from the street on which you front and any “required yard” (distance from a boundary to the building envelope). Be sure to read any new section covering Wireless Communications Facilities. This section may have been added after the Communications Act of 1996 came into law. You specifically want to see what is covered to see if you may be exempt from this section, which ordinarily covers cellular telephone and other commercial mobile radio antenna-support structures. It may or may not cover broadcast antennas. You will also want to read any special section covering setbacks. (If it is 500 to 1000 feet, consult your attorney to see if any cases in your jurisdiction have found such a large setback to be an “effective prohibition.”) That’s to start. If it appears that you will need a Special Use Permit, Special Exception, or Variance, you will want to have the section with the criteria covering such grants (to know what you must show in order to

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qualify), as well as the section that tells you how to apply and what to include in the application. As you can see, a single-page photocopy of the “height” section simply will not serve you well in most cases.

4.1.8 Copy of Relevant State Law Should your state be one of those that has a statewide siting system or certain requirements for you or the town, you will want to have a printout to include in your application or to hand to a Building Inspector or a Board member. This is legal research. Don’t guess.

4.1.9 Manufacturer’s Specifications and Installation Requirements for Your Tower You don’t have to include the entire instruction manual for your antenna-support structure. The Board just wants to be sure that what you propose is made by a reputable manufacturer, one who publishes real specification sheets with installation plans that can be reviewed by the Building Inspector. One specification that the Building Inspector will probably, and correctly, insist upon seeing is the allowable wind loading at the wind-speed requirement for your county and site. If you are contemplating a Heights tower (and you might take a look anyway because it is interesting), check out http://www.heightstowers.com/engspecs.htm. For a Rohn tower, see http://www.rohnnet. com, and click on “Products.” It won’t take much effort to find comparable data for Nello, U.S. Tower, ERI, Valmont, Sabre, Pirod, Fort Worth Tower, and so forth. If you are talking to friends of the author at Sabre or ERI, tell them I sent you! (Maybe they’ll send me a sweatshirt or knit cap.) Make your tower salesman your new best friend. He will welcome it, and you need what he can provide.

4.1.10 Long Tape Measure It will be necessary for you to include the distances from the proposed structure base to the lot lines, to your equipment shed, to neighboring houses or buildings of any kind, and to the street (or any public way). These can be painful to measure using a 10-foot, or even a 25-foot, tape measure. A 100- or even 250-foot tape measure sells for $14 to $35 at your local big-box hardware store. Tape measures that are 300 feet long are also available. Buy one now to use in your application process.

4.1.11 Handheld Compass Actually, this is a trick question, as you do not need a compass to prepare an excellent application, but you will need it later to construct your system. For the moment, everything you need is on your plot plan and the neighborhood assessor’s maps available from Town Hall. Look for the arrow pointing north. How to determine true north is a topic that could easily take up an entire lunch hour, or more, since there are so many ways to do so. It will become a necessary step in the installation of your system, but it is not a necessary step in the preparation of your antenna-system permit application. Your plot plan and map will have everything you need, which simply is an arrow indicating the direction of north.

Basic Preparations 53

4.1.12 Inclinometer An inclinometer is a device used to determine the angle to the top of a tree. It can be particularly helpful if you live in a neighborhood that is not generally level. It will save a lot of math homework, not that the math is really difficult. Any ninth grader should be able to help you with the trigonometry necessary for an antenna system application. But, if you want to see if an antenna will be visible from a certain spot at a given height, an inclinometer will make it easy. Also, the inclinometer will permit you to accurately detail the height of the trees on your lot, as well as the trees in a neighbor’s yard, should the question ever arise about whether or not an antenna will be visible from the neighbor’s backyard. You can buy a ready-made inclinometer. The last one I bought from Suunto (a Finnish manufacturer) cost about $80 and had a nice liquid-dampening system. Or, you can make your own from a plastic compass, a piece of string, and a weight. Sight along the straight edge of the compass toward a treetop. Allow the weight to hold the string straight down. Pinch the string and you’ve got the angle to the top of the tree. Measure the distance from where you are standing to the tree, using the 100-foot tape measure recommended above, and you’ve got all the necessary information to determine, with just a little trigonometry, the height of the tree. Add a laser pointer, and you can also prove what hand waving and shouting will not. If you tape the laser pointer to the straight edge of your compass and aim it, you can thus dramatically end any argument about whether or not you’ve sighted to the top of the tree, above the top, or below the top (see Figure 4.3). In the commercial market, you might consider the Suunto PM-5 Clinometer or the Suunto Tandem 360PC/360R Compass and Clinometer. Each has an accurate sighting mechanism, without using a laser. They are available from Amazon.com and tool suppliers to the logging industry. If money is no object, $700 should buy you a LaserTech TruPulse 200, a laser tool that reads both distance (to an accuracy of ⫾1 ft) and inclination (to an accuracy of ⫾0.25°), according to the manufacturer. You haven’t lived until you’ve sat through an argument between a neighbor and an applicant about the height of a tree. It is a pretty silly way to spend your time, and an inexpensive laser pointer will accomplish what hand waving will not, as both parties can go to the site and look for the red dot. There is no need to irritate the volunteers who sit on Boards with such arguments. The facts are the facts, and they should be presented as such to the Board. After that, you can argue about the implications.

4.2 A GPS Receiver If it will not be disturbed by the presence of too much RF, a Global Positioning System (GPS) will help you quickly discover the exact latitude and longitude—information you will need for your Antenna Structure Registration (ASR).

4.3 Your Computer You are embarking on a process in which you are asking people who are not familiar with radio to approve the erection and maintenance of a structure that they may never have seen. Further, they are

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Chapter 4 How to build an inexpensive angle finder to “measure” the height of trees Laser pointer to sight straight line to top of tree

Push for ‘ON’ button

Plastic compass

Piece of string Angle of elevation Weight

Figure 4.3 A simple laser-aided inclinometer to measure tree heights. Measure the angle using the inclinometer and measure the distance to the tree using a 100-foot tape measure. The height of the tree is calculated from Height ⫽ Distance ⫻ tan (angle). (Concept for illustration courtesy of American Radio Relay League.)

being asked to approve this construction in the face of what may be vehement opposition. Many zoning bylaws or ordinances put the burden on you, the applicant, to demonstrate that the proposal is not inconsistent with a single-family residential area, the neighborhood, or some such. Have no fear—you can do it. However, you must be thorough and completely understandable. Nowadays, the process of preparation will almost certainly involve a computer. You will need a computer and scanner, with word-processing software and enough RAM to handle the scanning of documents as well as photographs. In addition, the ability to receive and send a fax through your computer would be useful (although a good-quality fax can always be scanned in). You will probably receive a fax that you will want to turn into a .tif or .jpg or .pdf file for the purpose of inserting it as an exhibit in the application. So prepare now to make it happen. You will also need Internet access for visiting FCC websites, the MSN TerraServer website, http://www.topozone.com, http://maps.google.com, and so forth. A good-quality inkjet or laser

Basic Preparations 55 printer will be necessary, along with good-quality paper. A color printer will be useful for maps, your license (the document may look more official in color), and photographs that you have scanned or taken with a digital camera (documenting a balloon test, an anticlimbing device, and so forth). If you are a computerphobe, get used to the idea that this application is going to have several drafts. It will be a better application, with a higher chance of success, if you make it a professional presentation. You are going to need a word processor with a spell checker and, if the document is long, a “Table of Contents” function, as well as a “Track Changes” function if you are passing around copies of the application within your organization, as well as back and forth to your lawyer. It is quite normal for the Supplement to the Application, with all the background and data, to go through 13 to 16 drafts. Be vigilant in controlling version numbers. Since it is highly likely that you already own a computer with a word processor of some sort, boot it up right now and create a document called TIMELINE.doc. From now on, whenever you send a letter, receive a letter, make a phone call, receive a phone call, file anything, or whatever, enter it as a short note in your notebook and in your TIMELINE document. Trust me. Someday this could make your life a whole lot easier. It becomes especially relevant as the paper piles up. It becomes crucial if you must find documents or prove dates. Some states have statutory time limits by which time a Building Inspector must make a decision. You should keep track of dates. Make those entries simple. For example: 6/2/2009 (or, as I prefer, 090602): Filed building permit application.

Note: I prefer 090602 because: (1) if you begin files with such a number, they will appear in the correct chronological order when you try to find them using your computer’s “Explore” function. In addition, if you are using a spreadsheet, your spreadsheet program has an automatic function for listing things in numeric order. If you use “old fashioned” dates, 6/2/2009 will appear immediately after 6/2/2008, despite the fact that the two are a year apart. 6/3/2009: Filed map that I failed to include yesterday.

Oh, yes, it is always a good time to remind you that any papers filed in Town Hall should be filed in duplicate and time-stamped there. File one, keep one. You should keep a copy of the stamped version—to prove the date on which something was filed. This becomes important if they try to change the bylaw on you, once it becomes obvious that you intend to go forward with your plan. It could also be important if the town takes no action at all, and you must later prove the passage of time. Don’t feel nervous about asking anyone to time-stamp something. The administrative staff at your Town Hall does it every day, for no charge. It is routine.

4.3.1 Word Processing Software Many word processors include templates for various types of formal reports. Such templates can help make your presentation look more professional. One of the most professional things you can do is to include a table of contents and an executive summary. Ideally, you will have a word processor that is capable of inserting scanned images into a document. If not, you can simply use any word processor and put all the exhibits at the end, numbered. Be sure to include a page that lists all the exhibits at the beginning of the exhibits section to reduce repetitive thumbing through the document in search of the

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proper exhibit. But, you are better off if the exhibits are right in there with the text. Where possible, create your proposal and send it as an e-mail attachment to trustworthy friends who will not forward it to “parties unknown.” Gather comments and incorporate improvements suggested.

4.3.2 Images and Image Editing A document scanner will be very helpful. It will be helpful if you can add comments, arrows, dimensions, and so forth electronically when you incorporate scanned images into your presentation. Learn how to do this!

4.3.3 Working with Numbers (Spreadsheets) To perform an analysis demonstrating, for example, the lack of impact on house values due to the presence of existing radio antennas, you will need spreadsheet software. The CD accompanying this book has several such spreadsheets in Excel (.xls) format. A great deal of thought went into the study design. See if one of them works for you.

4.3.4 Drafting Software If you are going to create your own plot plan or if you intend to demonstrate how a neighbor’s view will actually be screened by nearby trees or an existing house, you may need software that allows you to draw and keep things in perspective. See http://www.imsisoft.com/ to check out TurboCad. I’m sure there are other landscape software programs. If you find a good one in freeware, please notify the author for mention in the next edition!

4.3.5 Showing Your Antennas on Photographs You may discover that mathematically you cannot fairly represent an antenna or support structure because 1/4-inch tubing, or Z-bracing, is simply too small and even 1-pixel-wide lines would be too fat. This may require you to exercise some judgment about whether or not you wish to attempt to insert a steel tower or aluminum antenna in a photograph. One alternative is to simply use a red dot to show the height of the proposed antenna and to explain the situation with a footnote. It is also possible, perhaps likely, that your antenna may not even be visible because trees will block it. In such a case, the use of a red dot on the photo to show the height of the proposed system, where the dot is plunked down on a tree, will show the Board that the proposed system will be blocked from view. In any event, this is an example of a situation where you may wish to have a scanned photo and insert the dot (with a circle around it or an arrow pointing toward it to help the reader spot it). Fortunately even the simplest scanning software today allows you to produce such an exhibit. A copy of a useful article on this subject is reproduced on the CD with the filename Photo Simulation.pdf. One thing may surprise you. Scan in your FCC license and reproduce it in color. It is unlikely that anyone will comment on it, but it is very effective at reinforcing the idea that you have an official FCC license.

C HA P TER 5

Getting to Know the Players

Now that you’ve familiarized yourself with your team and the tools you’ll need to go forward, it’s time to examine the other players you will encounter. They’re not on the opposing team, necessarily (though sometimes it will feel that way). Still, you need to be aware of them and what their motives are.

5.1 Types of Players As you proceed down the road to applying for a permit for your antenna-support structure, you may encounter opposition. It is tempting to regard this opposition with hostility and suspicion. It is particularly easy to suspect a conspiracy against the application. Some suspicion may be justified; some may not be justified. Nonetheless, in no event will hostility help you. Rethink the situation. Don’t be so ready to believe that opposition to you represents a conspiracy. There’s usually a far more innocent explanation—usually related to a lack of knowledge. If you experience opposition, it is most likely to be based either on a fear of the unknown or on a conviction that there will be a negative impact. A fear of the unknown is often expressed as a negative impact. It is not uncommon to see opposition to antenna systems that will be visible neither from the neighbor’s house nor from the street. So, the first line of defense is always to explain what you are going to do.

5.1.1 Objector Type A: Fearing the Unknown These opponents are basically fearful of your system. They may never have actually looked at your plans and are probably best characterized as fearing the unknown. These opponents are against it because they don’t know what it is. Today, when people hear the word tower, they think a heavy steel cellular or microwave lattice tower— 18 (30?) feet wide at the base, 4 (10?) feet wide at the top—with a crow’s nest at the top and dishes up and down the tower. This may, or may not, be what you have in mind. If you contemplate a camouflaged antenna support structure, it is important to get that fact out there right away. If you are putting up something small, perhaps whip antennas no bigger than 2 inches in diameter for two-way radio or a commercial repeater, a wireless Internet service provider (WISP) system, or a dish antenna of perhaps 1 meter in diameter, your opposition is likely not thinking about a support that is only 12 to 22 inches on a face, constructed as a lattice (“see-through”), with guy wires no bigger than 1/4 to 1/2 inch in diameter. 57

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If you’d like to keep legal expenses low or avoid them entirely, it’s your job to talk to your neighbors about what you propose. If you don’t talk to them, they’ll assume the worst about your project. If you don’t talk to them, they’ll assume the worst about you. Many an applicant has had bitter remarks addressed against him at a public hearing that began with: “Mr. Chairman, the first I ever heard about this proposal was when I received the registered letter telling me about the hearing this evening.” Boom. You are off to a bad start with the Board. Why? Boards [Boards of Appeals], or Planning Boards, are made up of volunteers—people who like to think of themselves as community-oriented folks who just want to keep their town a nice place to live. They like to think of the public hearing as “just an opportunity to discuss the proposed project with your neighbors.” This is often a delusion, since a Board of Appeals is a quasi-judicial body working with vague, sometimes impossible to discern standards (such as “shall not have a negative impact on the neighborhood”—note the double negative). These vague standards mean that it is impossible for you to put together a package of presentation materials that is ever a 100% guaranteed, slam-dunk winner. In addition to being uninformed about your specific project, your opposition may be uninformed about radio, wireless, or TV in general. The opposition may be uninformed about engineering in general. I once faced a neighbor opposing a project on safety grounds who simply claimed, “You can’t predict what Mother Nature will do.” If that claim were entirely true, you could never build an acceptably safe bridge, house or office building, never mind an antenna system. In other words, until you’ve met with them, you don’t know how well informed neighbors may be nor how intelligent. You just don’t know, one way or another. 5.1.1.1 Effective Strategies The only effective strategy with uninformed neighbors is to inform them. This gives you a chance to clear up any misconceptions. Sometimes you can do that. On the other hand, after being informed, you may discover that the neighbor is no longer uninformed and negative. The neighbor may now just be plain old negative. At this point, readers who are in the “site acquisition” (“site acq”) business are smiling. Generally, they have an entirely different viewpoint on seeking cooperation from neighbors. They get paid to get permits for sites. Thus, it is in their best interest to go after the “low hanging fruit,” or the sites for which it is easiest to get a permit. Much of the strategy in this chapter assumes that you have no choice—you are already committed to a particular site and you are not ready to go off and seek permission for another site half a mile away. Let’s assume, for example, that you are a broadcaster seeking to add a tenant to an existing tower or you are a landowner who wants to build a tower for business use behind your commercial building. In these cases, you have little choice as to where a proposed antenna system is going to go.

5.1.2 Objector Type B: Convinced of Negative Impact Sooner or later you will meet people who are opposed to what you intend to do. You may become convinced that the neighbors will never listen to reason . . . and you may be right. Nonetheless, you must always treat each person you encounter with respect, and keep your promises to these neighbors.

Getting to Know the Players 59 Putting it another way, never make a promise you can’t keep. For example, you may not be able to promise that your neighbor will never be able to see your antennas. You may not be able to promise that your neighbor will never have television (TVI) or radiofrequency (RFI) interference. Yet you still can do something positive in the face of such opposition. Some neighbors just need to vent the frustration that they cannot completely control the neighborhood and what other people do on their own properties. These are people who would be happy to tell you, if it weren’t impolite, that you’ve chosen the wrong color to stain your house or that you routinely leave your garage door open and it makes the neighborhood look unkempt. With a business or commercial proposal, they don’t feel held back by any feelings that it might be “impolite,” because they feel it is a heaven-sent right to prevent you from using land you own for economic reasons. Even worse, they may feel that they have a duty to preserve the land you own so they can preserve their views. On the subject of preserving aesthetics, by the way, do not assume that there are simple answers. The court decisions go both ways. They are fact dependant and depend on the ordinance in question, as well. This will be more fully discussed in the chapter on objections. Some neighbors hate radio, TV, cell phones, you name it. I remember one such old man who no doubt had a bad experience with TVI in 1953 or so, when shielding on both the TV and transmitter was not yet what it would later become. He died, of natural causes I hasten to add, still harboring that hatred of radio caused by the interference he had suffered on his TV almost 50 years before his death. Fortunately, both radio transmitters and television receiving systems (including cable TV, cellular telephone, paging systems, and so forth) are getting better. Printed circuit boards with good ground planes, toroids, shielding, and filtering have helped TV sets. Commercial manufacturing, shielded enclosures, coax, single-point grounds, more toroids, shielding, and filtering have helped transmitters. Sadly, some hatred may never be overcome. There are neighbors who hate you. This is hard to talk about in modern society, but I have personally seen bias against several Hispanic applicants and bias against a radio ham who was Jewish. It happens. If your management or programming may incur such outrageous discrimination, think hard about hiding behind someone else’s skirt. While some may counsel facing discrimination head on, others will advise that you get on the air first and worry about the discrimination later—when you are rich. Some neighbors truly believe that your transmissions may cause cataracts, or cancer, or headaches, or whatever. In that camp, even the most moderate may mistakenly believe that we really don’t have enough research to know whether or not radio transmissions are safe. (For those people, even if you get someone to agree that Marconi started transmitting over a century ago, it will be forever impossible to escape their claim that “we still don’t have enough experience.”) And then there are neighbors who truly believe all manner of other objections, such as “It will lower property values.” Such beliefs may be routine nonsense, but there can be no doubt that they are firmly held. For this reason, in the absence of the ability to build “as of right,” you should rejoice if you have a forum where the Board must obey a reasonably favorable law that may well disappoint some neighbors. Fortunately, you are not at the mercy of a requirement that you get permission from all of your neighbors. There are societies like that, societies that virtually grant a blackball to the neighbors: Bermuda and England may come close, and Canada insists on neighborhood consultations. But, despite the decline, Americans have not lost all property rights yet.

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5.1.2.1 Effective Strategies ●

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●

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Vote for candidates who believe in property rights. Well, that’s a good long-term goal, anyway! Talk to all the neighbors you can, whether or not you believe that you can convert them. Even if a neighbor is unalterably opposed to your proposal or won’t commit one way or another (and you should treat every “maybe” as a “no”), you may still learn the basis for the opposition by simply asking: “What is it that bothers you about this proposal?” Thus, you can better prepare for the public hearing, if there is one, or the next cocktail party, if that’s the only forum. Prepare, prepare, and prepare your presentation and exhibits some more. Make your presentation thorough, correct, and neat. Prepare your company, relevant family members (if appropriate), your experts, yourself. Gather the documents you may need; learn what the law says and what it does not say; assemble your exhibits; take your photographs; practice your answers. Pretend you are about to embark on a political campaign and you know that you are going to be interviewed by tough reporters.

Think about the questions and practice your answers. For example, preemption for Commercial Mobile Radio Services in the Telecommunications Act of 1996 (the TCA of ’96) may not be an absolute and complete preemption for you, but neither is it a “balancing test.” It requires of the town that you cannot be left with a “significant gap” in coverage. So be prepared to say why you need to do what you propose to do. Work those questions and answers until you could answer each of the hard questions during a 20-second elevator ride without mumbling. With good preparation, you’ll be OK.

5.2 Informal Discussions At some point you must settle on a plan and begin to shop it around, or else this idea you treasure is never going to happen. Before you submit the plan and start the time clock (when notice must go out, the Board must meet within so many days, a decision made within so many more days, an appeal filed within so many days of a decision, and so forth), you should take your ideas out for an informal test drive.

5.2.1 Talk Within Your Company You are about to embark on a multi-month process. In the end, an offhand remark, an accidental slight, or some other small matter could have a substantial influence on the outcome. He who is careful will more likely succeed than he who is careless. It may be important to brief coworkers and, if you are a broadcaster, on-the-road sales people before anyone else. It may be politically incorrect to say but, to be brutally upfront, if you are a small broadcaster this most often means briefing your wife.

Getting to Know the Players 61 There is one principal goal: Make no quotable statements that might come back to haunt you. For example, your wife or sales rep obviously must not say: “Oh, yes, I know the station is applying to put up a really big ugly tower, but we need it for more coverage.” Such a quotation could be incredibly damaging. It will be shoved in your face at some point and that point will probably be during the public hearing. It will happen something like this: “Finally, Mr. Chairman, I’ve spoken to the applicant’s wife [sales rep]. Even she doesn’t believe that the applicant’s proposed tower is benign. She once described it to me as big and ugly.” So here are some lines that your spouse and sales reps must memorize. ●

●

●

“Well, actually, I’ve seen many of these installations and they are benign. After a while, you won’t even notice it is there. People just don’t look up. If they did, most likely they’d see all those big telephone poles.” “I know that anyone can dream up horrible scenarios, but they are only imaginary.” “I have no concern whatsoever about interference to TVs, beepers, and so forth. We don’t have any of those problems at our office, where we have lots of computers and business machines. Besides, if they ever did pop up, we would do most anything we could to eliminate a problem. But, more importantly, the higher the antenna, the less likely is interference. If you don’t have any problems now, while the antenna is closer to the ground, there’s no reason to believe that problems will arise when it is higher.” If you can argue that other stations, cellular carriers, paging systems, WISPs, etc., don’t interfere and neither will you, so much the better.

And so forth. You absolutely must practice these, and other, responses, since the subject will certainly come up at the supermarket, chance meetings, and so forth. It is inevitable. By contrast, here are some examples of lines that could hurt you: ●

●

●

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“Our engineer has cleaned up most of the interference problems around the office and he’s promised to get around to the rest later.” (The sound bite: “Not even the applicant’s own place is free of interference.”) “Yes, we do have one child with only one ear, but some [the right answer is all] of the doctors told me that it was completely unrelated to radio.” (The sound bite: “We can’t even be sure that his own child hasn’t been harmed by radio transmissions.”) “My husband has dreamed of bringing an AM station to a small town all of his life, and we hunted long and hard to find a town that had ordinances that permitted us to erect it.” (The sound bite: “What he’s really saying is that he looked long and hard to find a town with weak ordinances so he could install the equivalent of a toxic-waste dump.”) “He really needs this antenna system. In order to communicate now, he has to rent space on a hill three miles away.” (The sound bite: “Why can’t he continue to do that? He doesn’t need an antenna system in our fair town.”)

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Perhaps there is really only one choice here. It is unlikely that your wife or sales rep will have the same familiarity with the issues or have practiced the correct responses as much as you have throughout your life. Ask your spouse or sales rep to say: “I’m completely familiar with what Tom intends to do. There is really nothing to be concerned about and I feel completely comfortable with the proposal. But, if you have questions, I know he’d be delighted to respond to them. Shall I have him call you?”

5.2.2 Talk to Other Stations or Carriers in Town There are several reasons to talk with other station owners, tower owners, or potential tower tenants who are familiar with your city or town. These are covered in some detail in Chapter 2, “The Process in a Nutshell.” Put succinctly, your goals for talking with other tower owners in town are fourfold: ●

Gather G-2.

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Get reassurance on how to handle inquiries from neighbors.

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Receive letters of support (“This is really necessary”).

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Ask for their support and attendance at the public hearing.

5.2.3 Talk to Your Neighbors Much of this is also discussed in Chapter 2. Set these goals for your talks with neighbors: ●

You can say you’ve done it.

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Gather G-2.

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Allay fears they may have about: 1. 2. 3. 4.

TVI/RFI, Setting off beepers, Setting off alarm systems, and Accidentally opening garage doors.

5.2.4 Talk to the Building Inspector 5.2.4.1 The First Visit The Building Inspector (also known as a Building Commissioner or Code Enforcement Officer) is usually a busy person. Also, if you walk into a Building Inspector’s office and assume any female there is a secretary, you can only hurt yourself. Ask. It is not uncommon for a Building Inspector to spend only an hour a day in the office and the rest of it on the road. As a law enforcement officer, a Building Inspector may wear a uniform. The Building Inspector may drive a car with a seal on it and “state official” license plates (thus lessening the chances that someone will shoot at a person who appears to be trespassing). Even in the dead of winter, when

Getting to Know the Players 63 you’d think that the building season has subsided, Building Inspectors could be busy catching up on a backlog of wood-stove inspections. (I’ve seen this problem in my practice.) So, be prepared before you go to see the Building Inspector. Your appointment could be very short—perhaps five minutes. Plus, there may well be three guys in work boots out in the hall waiting behind you. Those three guys in work boots in the hall are local contractors who work with the Building Inspector all year round. They have relationships with him. They buy him a bottle of scotch at Christmas. They drink coffee with him on cold mornings onsite. They may even be in the room with you while you are making your presentation. It can be unnerving, especially if you thought you’d have a few private moments with the Building Inspector. Be prepared. The Building Inspector looks at stairs, walls, roofing, and so forth all week long. He may or may not be familiar with the bylaw that controls the antenna system you wish to erect. Moreover, if my experience is any guide, he may not be inclined to tell you that he doesn’t have your bylaw or ordinance, building code and state statute, as well as federal preemption, memorized. So, here are a few suggestions that will be well received by your Building Inspector: ●

●

Bring the relevant bylaw, ordinance, building code, and state statute sections with you. This is why we have photocopying machines, paper clips, yellow felt-tip markers, and little sticky notes. Walk the Building Inspector through the relevant sections in a rehearsed sequence in under a minute.

●

Then turn to your list of questions, because the thing he’s thinking is: “Why are you here?”

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Ask the easy questions first and get rolling. 1. “If I use only low voltage (perhaps 24V DC for an antenna rotator), will I need to pull an electrical permit?” (The answer is probably no, but you should ask since it is an easy question and starts you off.) 2. “I just want to put up this antenna system on an existing structure. If I provide all the heights and distances on a scaled drawing, will you require a sealed survey?” 3. “Do I need to show ground contours when my only construction will be up on the tower and indoors in an existing building?” 4. “Do I have to show the houses on adjacent properties or can I just show the distances?” 5. “When is an application considered filed? When I hand it to you, or after it has been circulated to any necessary Boards or Departments?”

●

Then, after you have his attention, dive right into the open-ended questions: 1. “Will you accept a catalog spec sheet? Factory drawings?” 2. “Will I need a signature from any other departments, such as the Board of Health, the Fire Department or others? Do I get those signatures, or do you?” 3. “Are there any changes in the relevant ordinances now being considered by any Board or Committee?”

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Save the difficult questions for the second meeting: 1. “I can put up a less visible structure (much less bulk than a self-supporting structure), if you’ll let me put the guy anchors between the setback and the property line. What do you think about that?” 2. “Is a PE seal necessary?” If the answer is yes, then ask: “Will you accept a dry seal from the manufacturer?” 3. “Do you remember if anyone else in town has ever applied for a permit for an antenna system? Could I see that application, please? How did it come out? How can I contact that person? Is it still up?” (If you see one, whether or not it was successful, pay the exorbitant photocopying fee of 25 to 50¢ per page and take home a copy. It’s well worth it.)

Remember, you can read the rules in the rulebook. The purpose for meeting with the Building Inspector is to learn the answers to questions that are not addressed in the bylaws or building code. You want a little local lore, history, and practice. You are trying to demonstrate to the Building Inspector that you are knowledgeable about the law on the subject, that you know what you are doing with respect to good construction practice, that you can be trusted, and that you won’t try to pull a fast one (surprise him with your good intent!). Here are some examples of informal rules that you could learn in a visit, ones that you won’t learn in the rulebook or over the phone: ●

●

Some towns have not modified their bylaws or ordinances to meet the requirements of state or federal law. For whatever reason (inertia, opposition to federal interference in local zoning, whatever), the bylaw may be clearly illegal. One example would be an absolute prohibition against a broadcast tower more than 42 feet high (such as the case in Lebanon, NH, which we litigated all the way to the New Hampshire Supreme Court and won a ruling of preemption). In another town, however, with a badly drafted ordinance (for example, an ordinance that purports to regulate interference), you might learn that the Building Inspector and Town Counsel are aware of the fact that their bylaw is illegal. They may have decided that, despite the ordinance, they will ignore the interference ordinance and testimony on it will not be permitted at a hearing. This could save you a lot of time and several slides in your PowerPoint presentation, because you won’t need to address that problem. Here’s a real-life example of an illegal ordinance from the Citrus County (FL) Code: §4673.F.14. Communications Transmission/Reception Interference Each application to allow construction or modification of a telecommunications tower and antenna shall include a certified statement from a qualified, registered, professional engineer licensed in the State of Florida, attesting that the construction of the tower, including receiving and transmitting functions, shall not interfere with public safety communications and the usual and customary transmission or reception of radio and television.

●

You might discover that the City Planner has just decided to “make it up.” For example, the City Planner may have decided to grant a Building Permit as a matter of course to anyone for an antenna system up to 60 feet high, requiring a full hearing and Special Permit process

Getting to Know the Players 65 only for antennas above that height. (How anyone could obtain, and how they could grant, a Special Permit process without an authorizing bylaw remains a mystery to this day, but I have personally obtained Special Use Permits or Conditional Use Permits in situations where I prayed that no one would appeal, because there was no basis in law for the grant of the permit.) ●

●

●

In another town, the bylaw had a real oddity. It permitted antennas as a matter of right up to 20 feet above the house if the antenna was attached to the house. This town had a lot of three-story houses, so the effective right was to build up to about 55 feet above grade. However, a freestanding accessory structure could only be constructed to a height of 35 feet. Upon inquiry, the Building Inspector told me that if the client would run a steel wire to support feed lines from the house to the antenna support structure, he’d consider the structure to be “attached” and would grant a permit as a matter of right up to 55 feet. Here’s another special case. One Building Inspector told me to calculate a triangle for the uppermost guy wire as it entered the setback area. His bylaw required that accessory structures in the setback area be less than 12 feet tall (where the original idea was to accommodate basketball nets). What he wanted was that the average height for that portion of the guy wires that was within the setback area not exceed 12 feet. This permitted us to move the guy anchors into the setback area. In yet another special case, the Building Inspector simply would not permit intrusion into a five-foot setback, but he was happy to permit guying through a solid live tree, especially when told that a different ruling would result in cutting down the tree, because it was where the guy wires had to land.

Finally, there are times when the rule is clear, but you must know if it applies to you! Here’s an example. In one town, the wind-load requirement was controlled by the easily read definitions of Zones A, B, or C. The lowest wind-load requirement occurred in Zone A, which is thickly forested and otherwise protected by rolling hills. But, given the client’s proximity to the sea, which zone was he in for this purpose? The answer to that question determined how we would propose to guy the structure (three sets or four, 3/16- or 1/4-inch EHS guys). So, prepare your questions, prepare your presentation, and show some respect by showing up during announced office hours or by appointment. Then, grab your answers and leave! You can be friendlier on the second visit. 5.2.4.2 The Second Visit If time and circumstances permit, you may go back to the Building Inspector for a second visit. This time you should have a good idea of what you want to do, where it is going, and so forth. The objective of this visit is no longer to get a feel for the rules, formal or informal, but rather to nail down, thoroughly and firmly, the process. Bring your draft permit application and lay it out on the table. Walk the Building Inspector through the application. Your principal questions this time are: “Am I providing everything you (or the Board of Appeals) will need to make a decision? Have I left anything out? Is there anything else you need to see to make a decision?”

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Don’t bother asking if you’ll get the permit from the Board. He has a feeling but is unlikely to tell you what his guess may be. After all, the Building Inspector is supposed to be a neutral, an employee of the town. He has an obligation to be helpful to the Board, which is why he’ll be helpful explaining what you must include in your application. Boards hate incomplete applications, and, upon hearing that you’ve visited with the Building Inspector and he didn’t tell you what you’d need to include, they’ll be mad at both you and the Building Inspector. That’s why he has an interest in telling you what to include. But, he is unlikely to have a reason to guess at the outcome. At this point, he doesn’t know whether there will be any opposition, so his guess isn’t worth much anyway. Don’t bother asking. It is the sign of a rookie.

5.2.5 Talk to the Secretary to the Planning Board or to the Town Planner You will want to: ●

Learn what the Board wants to see.

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Learn when (the day of the week and how often) the Board meets.

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Learn how crowded the Board’s calendar is.

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Learn when they decide (right then, later that night, Saturday morning?).

Your town may have a Planning Board, which is different from a Board of Appeals. The Planning Board normally works on issues such as suggesting future changes in the zoning bylaw or ordinance, working on strategies for traffic calming, and reviewing (in a somewhat formal yet somewhat informal way) proposals that will next go to the Board of Appeals for zoning approval. They also tend to handle applications for site plan review. What is site plan review? It varies. It can be nothing more than a review, during which the Planning Board tries to jawbone (pressure, by strong persuasion) the applicant into doing something that the applicant did not plan to do—such as moving the tower base to another spot or planting vegetation (trees) not required by the bylaw. Or, it can be a set of conditions which, until fulfilled, can hold up the necessary permits. When you go to the Planning Board, you are out in the open. Your name will be on the agenda. The local newspaper may cover the meeting, which is probably a public meeting (meaning that anyone can attend), and your neighbors will learn what you are planning (which means that they can start to organize against you, if that’s going to happen). However, it would still be wise to go see the Secretary to the Planning Board or the Town Planner. If your town is big enough to have a Town Planner, you should approach this person with caution, yet you should also approach this person. Why? Because the Town Planner is likely to be a professional, is more likely than a volunteer to subscribe to professional publications, and may well be the only person with whom you can discuss such questions as “What has the Board looked upon in the past that is similar?” Here is a list of questions to bring to the Town Planner: ●

What bylaws do you think apply?

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What information will the Board of Appeals need to make a decision?

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What does the Board, as a rule, prefer in the way of siting?

Getting to Know the Players 67 ●

Who are the current members of the Board?

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What’s the procedure in this town?

●

●

What’s the timing involved? How many weeks after I apply will I likely be on the agenda? Do they tend to decide that night, or later? How long will it take the Board to issue an opinion? Have there been other antenna proposals before the Board in the last decade or two? Do you think the Board appreciates the difference between a cellular telephone antenna system and a broadcast radio FM antenna system? Are there examples of paging antennas in town?

There are Town Planners who will play it straight and give you the scoop on how to make your application so it will receive fair consideration. There are also Town Planners who will be horrified at the prospect that someone would want to put up a commercial antenna system. So don’t reveal anything to the Town Planner that you don’t want revealed at a later date to the Board of Appeals— such as your height strategies, if you have any. What is meant by saying that you should not discuss your height strategies with the Town Planner? For an AM station, this might mean that, if pressed, you’d consider a top hat for capacitive loading instead of pressing for a full height vertical for your AM station. An Anecdote. The use of a top hat (see Figure 5.1) enabled KFI (La Mirada, CA) to finally resolve its permitting difficulties when it tried to replace a tower that had been struck by an errant general aviation

Figure 5.1 The KFI tower with its new and distinctive capacity hat. The tower’s height was reduced by 75 feet, but this 50-foot-diameter capacity hat makes up for the missing height. (Photograph courtesy of Marvin Collins.)

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aircraft trying to land at the nearby Fullerton airport. (Note: The KFI tower is outside of the Fullerton Airport’s air space, and the FAA had already made a “determination of no hazard.”) It is highly unlikely that the Town Planner will give you any reliable feel for the outcome of the proceeding. Even if the Planner did, you shouldn’t rely on it. The Town Planner (other possible names being City Planner, Director of Planning & Development, or Director–Building Services Department), if you have one, is always a better resource than the Secretary to the Planning Board, but you want to become friendly with both, if your town has one of each. Note that you may be asking the same questions of both the Secretary to the Planning Board and the Town Planner. Don’t worry about seeming repetitious. Only you know that you’ve asked the questions before. Each person will answer those questions in a slightly different way and that difference in perspective may prove useful. One further word about the Town Planner. If the process where you need to apply is handled on a countywide basis or you are dealing with a big city, there may be an entire planning department. In this case, you may find yourself dealing with a young person, almost certainly inexperienced in tower zoning, except perhaps for cellular tower cases. If your project is for a weather radar antenna, an AM broadcast station, a major FM or TV antenna on the rooftop of an existing building, or some other form of project that this planner has not handled before, you may find yourself in a situation where all of your questions are met with: “I’ll have to get back to you on that.” This can be tricky. Nonetheless, remember the old adage: “Never talk to the monkey, when the organ grinder is available.” It may be in your best interest to ask if you can meet with the division chief or Director of Planning. Try an approach along these lines: “I feel as though I’m unfairly asking you to be an intermediary. Would it be possible to arrange a meeting with your boss, where I might be able to clear up some of my questions without putting so much of the burden on you?” If there is no City or Town Planner, there is no harm in asking the above questions of the Secretary to the Planning Board. However, you may not get answers in as much depth. Also, the Secretary to the Planning Board is less likely to have a degree in city planning and subscribe to professional journals, which is why the position pays less. But, watch out—there are places where the Secretary is the real power. All this only proves what your mother told you while you were growing up: “Be nice to everyone.”

5.2.6 Talk to the Secretary of the Zoning Authority The Secretary to the Board of Appeals may be new or lack understanding of the issues. However, now and again you get lucky and the Secretary is a long-service employee who can help you effectively assemble your application. She doesn’t do this just because you have asked her to be on your side. She does this in response to an appeal along the following lines: “I don’t want to waste the Board’s time, so I was wondering if you could review my application to see if I’ve included everything the Board needs to consider to arrive at a decision.”

Getting to Know the Players 69 Learn when (the day of the week and how often) they meet. As a separate question, the Secretary will tell you about the Board’s schedule. Be careful, since it may vary; for example, here’s a schedule that is fairly typical, at least in New England: ●

Fall—the second Tuesday of each month or every other Tuesday

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No meeting in December, or only one meeting

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Spring—the second Tuesday of each month, or every other Tuesday

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Summer—no meeting in July or August

As you never know (these Boards are comprised of volunteers), ask. Learn if the calendar is crowded. Your application may come up in a week, or it may be six or eight weeks before agenda time is available. Since this affects your planning for meeting with neighbors, your printing schedule, your travel plans, and so forth, be sure to gather as much information about the calendar as possible. In an ideal world, you will have a chance to attend two meetings before yours comes up. You’ll learn a lot about how to present—and how not to present—a petition. Learn how and when they decide. As to how they decide, you might discover that “staff” (a staff planner or the Town Planner) makes a written decision and mostly they follow the staff recommendation. If that is the case, you must try to make the Town Planner your new best friend to influence the staff recommendation. If you find that you can’t influence a negative staff recommendation, at least prepare yourself to act quickly when you get the staff report. For example, you may get (by asking, or automatically) the staff recommendation 14 days before the Board meeting, but any written materials you wish to have distributed in advance of the hearing may have to be submitted 10 days before the hearing. You might have to act quickly. It is almost always possible to get your materials circulated with other materials to Board members in advance of the meeting. Getting your materials distributed to the Board is usually the job of the Secretary to the Board. You may be able to submit written materials, and also prepare a PowerPoint presentation. You’ll want to ask the Secretary for the deadline on submitting materials for distribution. If you fear that deadline, there is no harm in inquiring if you can mail (or even e-mail) materials to the Board (always send a copy to the Town Planner as a courtesy). To protect a volunteer board, sometimes you can e-mail materials to the Secretary and the Secretary will forward them by e-mail to the Board. Some elements of this discussion depend on your relationship with the Secretary to the Board—another reason to be nice, friendly, and respectful in all dealings with her. As to the PowerPoint, you get to fiddle with it right up to the hearing. Here’s one tip: Be prepared to bring it along on CD, on a USB stick, printed out, or any other way you can think of. The Secretary will tell you the usual method, but you’ve got to be prepared with a backup plan. I’ve had situations where the computer provided would not read the CD I burned, and situations where the computer provided would not read the USB stick I brought. On one occasion, I brought the same PowerPoint presentation on two different USB sticks, but the computer would just not read either one. I asked the

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Board for a break and we (a member of the Department of Development Services and I) e-mailed the PowerPoint to the computer in the hearing room. Be prepared. As to when they decide, some Boards pause, talk it out, and vote, right then. You may be shocked to see a motion such as: “I move that we approve the staff report.” Others will decide at the end of the evening, hoping that, despite an open-meeting law, many of those present will have gone home. Then they’ll be able to decide in relative tranquility—with nobody seething in the audience when a Board member expresses something out loud that reflects a misunderstanding of the evidence. Still others make no decisions that evening, preferring to meet perhaps on Saturday morning to make all decisions and assign the decision writing. If you have an open-meeting law but don’t know when and where they meet to decide, you can’t be there.

5.3 Fill Your Notebook Once you are out there talking to people, you must keep notes, in the bound notebook described in Chapter 4. You must keep details of discussions—including dates, times, and who was present. Here are some reasons from real-life experience why you must do this: ●

●

The Building Inspector tells you that, in his or her view, the height is the height of the support structure and not the structure plus mast. If he or she has a change of mind later, you don’t want to be accused of “trying to slip one by.” You can avoid this predicament by simply reminding the Building Inspector that you were following his or her instructions from your conversation on a given date. You make notes when visiting a neighbor to explain the proposal to both the husband and wife. At a later date one of them claims that all of this is news and you never came by to visit. (The truth is more likely to be that they weren’t excited back then but they are now.) If you have notes on the date, place, and time, as well as the fact that both were present, they will back off. Your notes can help to refresh their memories.

5.3.1 Identify Supporters and Opposition If you keep notes, you are more likely to capture information that could prove useful later. For example, you may learn that a radar system that once occupied the top of a hill in town was later dismantled and the land returned to agricultural use (a real-life example that occurred in Lincoln, MA). You may be able to obtain photographs from the local paper’s archives or an employee who once worked there to show that such an antenna system once did exist and that life as we know it in Western Civilization did not end. It can be particularly useful to remind all concerned that an antenna system is not as permanent as the construction of, say, a really ugly house, a commercial building, or the proverbial toxic-waste dump.

5.3.2 Identify Specific Objections Another reason for keeping notes is to capture specific objections. Someone may say to you: “But I’ll be staring right at it from my dining room table!” It may be that this is not true, but you can be certain

Getting to Know the Players 71 that you will hear this objection again at the public hearing. Having recorded the objection in your notebook, you can be reminded later to take a photograph showing that: (1) the actual angle of view does not permit a sight line to your proposed structure, or (2) the view is blocked by trees (even in the winter). Without photos, on the evening of the hearing it will be your word against his and a Board may assume that the long-term neighbor knows his property better than the newcomer who wants to put up an antenna to—gasp!—make money.

5.4 Zoning Authorities What you are about to read is based on experience. You know deep in your heart that surgeons are different from psychiatrists, don’t you? But you also know that they’ve got some characteristics in common, right? Well, the people who take positions as Building Inspectors, members of Planning Boards, and Boards of Appeals have some common characteristics, too. Getting these feelings and descriptions past my editor was difficult, but here we go.

5.4.1 Building Inspectors, Commissioners, Code Enforcement Officers Somewhere along the timeline of their lives, most—but not all—Building Inspectors, Building Commissioners, or Code Enforcement Officers (to use three common titles) have been contractors, or else they supervised construction in the military. By and large, they are regular guys. (I’ve met just one who was a woman and, as you would expect, she knew her stuff.) As long as you want to talk about a paragraph in the building code or a drawing, they are friendly and, in my experience, pretty rational. But, they also hold their jobs at the pleasure of the Board of Selectmen, the City Council, or Mayor. They know which way the political winds blow. Sometimes they will decide something your way just because it makes sense. Sometimes they really don’t want to make a decision at all and will turn you down. This is not because you are wrong, but because, when something may prove controversial, they think a civil servant shouldn’t make a decision. The Building Inspector may feel that a Board of townspeople can better reflect the town’s wishes and that the Board should be making such a decision. Whatever happens, Building Inspectors deserve your respect. They earn it by calling the shots as they see them, when they can. Always treat them with respect. If it is possible, this means you should call and ask when the Building Inspector has office hours and whether or not he or she takes appointments. Some do and some don’t. Treating them with respect also means that when you meet with the Building Inspector you should be ready with a list of questions all tied to a paragraph in the bylaw or building code or with questions that have to do with what the Building Inspector finds acceptable in construction practices. Showing respect means that, if you leave promising that you’ll check something out and get back with an answer, you’d better keep your word. Remember, you’ll have to deal with the Building Inspector before any hearing on your permit, during the course of the hearing, and after the grant of a permit. Then the Building Inspector will make inspections and issue your final Certificate of Use. In other words, you’ve got a lot of interactions with the Building Inspector ahead of you. Be nice.

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The Difficult Building Inspector (BI) or Code Enforcement Officer (CEO) Despite your best intentions and pure heart, occasionally you will run into a difficult situation with the first level of officialdom. This is the person you start with and may be the person to whom you return after site plan review and approval and issuance of a Special Exception, Conditional Use Permit, or Special Permit. The mystery of it all. There will be situations where you simply do not know what is going on. Why doesn’t he return phone calls? Why does he seem so imperious? Why doesn’t he give me a break on details such as original signatures or other minor matters where it is clear I’ve assembled what is necessary? The answer is: You don’t know. You may never know. But, there are some things you can do about the situation. LBJ, that’s President Lyndon Baines Johnson, former majority leader of the house and the man who succeeded to the presidency upon the death of John F. Kennedy, used to say: “Keep your friends close, and your enemies closer.” The application of that axiom to this situation is that you must become the Code Enforcement Officer’s new best friend. We’re talking about face time here. Package up some humility and go visiting. Bring a fresh cup of coffee for him. Send him a Christmas card. You can give him a station pen or give his kid a T-shirt, but no tickets to local sports events or anything of significant material value. Let’s not contribute to corruption. This is a terrific country that generally lacks corruption, and you should want to keep it that way. Details, details, details. The next thing you can do is to assemble what you’ve got and keep going back to his office to ask the question: “Is my application complete yet?” This means that if the bylaw calls for a certain signature block, a certain size of drawings, certain views, a certain scale, you must beat up on the surveyor or landscape architect to provide exactly what the municipality requires. The problem here is that surveyors like to do things the way they like to do things, and the bylaw may specify a way of doing things that is different. Do yourself a favor and provide the surveyor with a copy of the latest version of the relevant bylaw sections. He’s not the one who will suffer if the drawings are wrong. It is easier to make the surveyor draw things up according to the bylaw than to seek and obtain a waiver of a bylaw requirement. Similarly, if you can’t get your permit without an insurance affidavit, or certificate of worker’s compensation, get it now. Don’t ask the BI or CEO to waive those things. He can’t, and you will look foolish for asking. Finally, if the office has forms that they require, be sure to fill them out. All of them. You may wish to learn about a nice piece of software: Omniform, by ScanSoft. The output looks much more professional than handwritten forms and is easier to edit and reprint. Whatever scanner you have may also have come with “form-filler” software. Plus, who has an old-fashioned typewriter available to use anyway? Why is he saying no? The answer is that he has no reason to say yes. Get used to it, and spend your time preparing for the appeal to the Zoning Board. The CEO may essentially be required to say no. Here’s one example: The Code Enforcement Officer shall: . . . Take the most conservative or restrictive approach in applying these regulations. Zoning Bylaw of Wolfeboro, NH, §175–183 B(1)(h)

Second, he has no reason to stick his neck out for you. You may not live there. Your station may not really be part of the fabric of the local community, because the market is the big city nearby.

Getting to Know the Players 73 You must go to the Zoning Board of Appeals (ZBA) anyway, so why should he take a risk? He’s just an employee. But, here’s a practice tip. If at all possible, avoid making the CEO say no. If the ZBA has all the powers of the CEO, it may not be necessary to get a “turn down” from the CEO first, before you present the issue to the ZBA. This will vary by community, but skipping the CEO can be wise, because the ZBA has greater latitude in making interpretive decisions, whereas the CEO may have his hands and feet bound by the requirement to “take the most conservative and restrictive approach.” Also, when you’ve got a negative decision from the CEO, you are asking the ZBA to overturn their own employee. The lesson? If at all possible, skip the CEO if you know he’s going to say no. A bump in the road—the independent PE requirement. A CEO may feel totally uncomfortable making a decision about high steel. Whenever a CEO feels uncomfortable, and this is based solely on a lack of knowledge, he has alternatives. He can ask that the design be reviewed by an independent structural engineer selected by the town (but for whom your station must pay). This may or may not be authorized by the statute, the building code, or bylaw. Don’t worry about it. Agreeing to it is cheaper than fighting it. Professional engineers (PEs) do this sort of second-opinion work all the time. Doctors do it all the time. Sometimes even lawyers have opinions subjected to a second opinion. No professional should be insulted, and every professional should cooperate. If your PE does not cooperate by providing his calculations to the reviewing PE, you should ask yourself why. Even after the review of the design by an independent PE, the CEO can require “controlled construction,” in which a PE is asked to oversee and inspect the construction and put his stamp on the line. You really cannot fight this either. Yes, he’s passing off inspection (which is, after all, the job of a Building Inspector) to someone else, but it’s not irrational. Don’t even bother to get mad. It’s just another cost of construction. Bringing in an independent PE (and, if you think about it, you may be bringing in several) is a classic cover-your-ass move by a CEO. It allows him to have a really good answer to the neighbor who says: “Is this thing going to fall on my head?” By the way, here’s how up to four PEs could be involved. I know, I lived through this situation. ●

PE #1 works with the manufacturer of the steel to reinforce a tower strengthening and designs the project.

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PE #2 signs the building permit application, because he has a license in the jurisdiction involved and will be the controlled construction inspector of the work done by PE #1’s firm. Obviously, PE #1 cannot inspect his own firm’s work.

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PE #3 is the independent structural engineer whose signature is required by the state building code just to submit the application.

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PE #4 is selected by the ZBA to review the design. This PE is not authorized by statute or bylaw but has been agreed to by the applicant who didn’t want to fight because that would hold up the job longer and cost more. Saying yes was cheaper than saying no.

A conflict of interest. There is always the possibility that the CEO has a conflict of interest. He may live nearby or own property nearby. That should disqualify him under your state’s conflictof-interest laws. Check out the state law on the subject. There is no doubt a statute involved.

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Read it. In most states, a financial interest is presumed and an official is “conflicted out” if (according to the Massachusetts rule): ●

The official’s property directly abuts (i.e., it shares any part of a property line).

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The official is a “party in interest” under the state statute (i.e., the official’s property is directly opposite a street, public way, or private way, or is an abutter to an abutter within 300 feet of the property line).

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The official is a “person aggrieved” for the purposes of the Wetlands Protection Act.

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The matter would otherwise alter the official’s property value, rights, or utilization. For example, property owners are presumed to have a financial interest in zoning changes, variances, nearby subdivision or development approvals, and roadway, sewerage, or safety improvements.

The actual rules are always your state’s rules. On the other hand, he may not be affected, but it could be his sister’s cousin’s aunt who is screaming at him, in which case it may not be illegal for the CEO to stay on the case, but it could still make for a difficult relationship with the CEO. The State Ethics Commission of Massachusetts has a very detailed fact sheet online regarding elected officials at http://www. mass.gov/ethics/factsheet6.htm. This provision of the law is intended to ensure that public employees are acting in the best interests of the citizens they represent and are not pursuing their own self-interest or other private interests. To read in greater detail about the Building Official’s responsibility to the citizens, consult http://www.mass.gov/ethics/sum17.htm. Here is the short form of how it should work. A Building Inspector or Code Enforcement Officer who has a conflict of interest should not participate in the decision making. At all. In a small town, this means that the CEO from a neighboring town may have to be called in to make decisions. Some CEOs, however, are too cute by half. The CEO might ask a CEO from a neighboring town to step in but will remain active in guiding that CEO on how to make the decision. The way to test this is to call the acting-CEO directly and discuss things. Watch out for a phrase such as: “I’ll have to check on that.” This could mean that what should not be happening is, indeed, happening. It could also mean that the Building Inspector just hasn’t read the bylaw or ordinance. So don’t be too quick to accuse. Nonetheless, conflicts do happen. You might need to appeal to a state Building Code Appeals Board or to the state Ethics Board. An ornery personality. Despite a career-long admiration for the steady hand that CEOs normally bring to the situation, just as you can occasionally run into a senior officer in the military, a school teacher, a doctor, or even (heaven forefend) a lawyer who takes his or her power too seriously, it can also happen in the world of CEOs. You may just have found someone who is really difficult. It happens. Advice. So what should you do when faced with a really stiff Building Inspector? Here are some tips: ●

Be patient, and pay attention to details.

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Be prepared to come back again and again.

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Be nice each time you come, no matter how frustrating the situation may be and how heavy the pressure from management.

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Meet each objection, and decide what to do about unreasonable requests (you can safely, and you should, refuse a request for an RFI study or follow-up or condition).

Getting to Know the Players 75

5.4.2 Planning Boards Planning Boards may be appointed or elected; however, the method of selection does not matter with respect to the type of person who generally serves on a Planning Board. Planning Boards are generally dominated by people who always wanted to be city planners, or people who are working their way through the system and may soon serve (or have just served) on the Finance Committee or Conservation Commission. They’re on their way to Selectman or Councilman. This Board often attracts architects and lawyers. You can pray that, in your case, it has attracted someone who is a civil engineer or excavator. There is one thing about these people of which you can be certain. They are on the Planning Board because they like to plan. They have a vision about what the town should look like in 20 years. They just live to control developers and people like you! In my experience, you cannot predict the actions of a Planning Board. Sometimes they have members who are diehard environmentalists and sometimes they just look at the law—then they look at what you propose and say “OK” or “not OK.” Here’s the thing to watch for. A Planning Board may have only limited authority, such as site plan review. In the past, and perhaps in your state, this is just the power to “jawbone” an applicant; for example, they may ask, but not demand, that you move the foundation. On the other hand, in your state, the Planning Board (or whatever may be the name of the board doing site plan review) may have the power to impose conditions. They may not have the power to grant or deny a permit, but they can do bad things to your aspirations in the form of conditions that may be attached to site plan review. A condition might be a maximum height, a certain setback, camouflage, fencing, a requirement to plant a vegetative screen, and so forth. Be careful to distinguish conditions that just cost money from conditions that they may not realize are the equivalent of denying your permit. Explain the difference to the Board during the hearing, if you see such a condition arising in the discussion.

5.4.3 Zoning Boards It is common in small towns for lawyers to serve on a Board of Appeals or Zoning Board in order to please the town fathers—and to pick up local real estate work. Some lawyers are motivated to become powers in town so they can get trust, estate, and divorce business. Such lawyers may have no inkling at all about what the issues are, but they are lawyers and therefore may be inclined to think they know it all. (In this respect, they can resemble engineers!) The blessing about lawyers, engineers, and architects is that you can sometimes get them to read a statute, case, or at least a paragraph of a Federal Communications Commission (FCC) ruling. The pain administered by such people is that, when attempting to write a tight opinion (while not getting paid), they can be pretty sloppy with the facts. If some fact is misstated in the decision, sometimes you’ve just got to paper the file (write a letter pointing out the factual error) and get on with life. This is exactly what you should do when they blow it, but yet you can live with their errors. Yes, you could say that this person has a need to control others. You don’t want to tangle with a person who totally loves to control others. This person is not your friend. Laissez-faire personalities do not take these posts!

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At some point, you may wish to rent a video of the movie Pleasantville (1998, directed by Gary Ross). This will help you understand your inner turmoil as you go through the process. It is a movie where the protagonists don’t want to conform to the overwhelming sameness. Small town? The blessing of cities is that they may have professional planners and lawyers on staff. The blessing of small towns is that they sometimes (but not always) have small budgets and cannot afford to spend money on litigation or lawyers. But, watch out. You may run into some “free lawyering,” at least on the advice and guidance side. Lawyers seldom volunteer to litigate free of charge. It is just too much work. One other warning: Even if you believe that the town may be unable to afford litigation, some neighbor may undertake litigation to enforce a bylaw by filing an appeal. This can be very troubling, because, under the American system, each side pays its own attorney’s fees. You are unlikely to recover the cost of defending a perfectly good Special Use Permit or Building Permit just because you prevail on appeal. On the other hand, a close reading of the state statutes may be in order, as there are sometimes opportunities to recover damages and attorney’s fees. Nevada has such statutes:

NRS 278.0233 Actions Against Agency: Conditions and Limitations. GENERAL PROVISIONS 1. Any person who has any right, title or interest in real property, and who has filed with the appropriate state or local agency an application for a permit which is required by statute or an ordinance, resolution or regulation adopted pursuant to NRS 278.010 to 278.630, inclusive, before that person may improve, convey or otherwise put that property to use, may bring an action against the agency to recover actual damages caused by: (a) Any final action, decision or order of the agency which imposes requirements, limitations or conditions upon the use of the property in excess of those authorized by ordinances, resolutions or regulations adopted pursuant to NRS 278.010 to 278.630, inclusive, in effect on the date the application was filed, and which: (1) Is arbitrary or capricious; or (2) Is unlawful or exceeds lawful authority. (b) Any final action, decision or order of the agency imposing a tax, fee or other monetary charge that is not expressly authorized by statute or that is in excess of the amount expressly authorized by statute. (c) The failure of the agency to act on that application within the time for that action as limited by statute, ordinance or regulation. 2. An action must not be brought under subsection 1: (a) Where the agency did not know, or reasonably could not have known, that its action, decision or order was unlawful or in excess of its authority. (b) Based on the invalidation of an ordinance, resolution or regulation in effect on the date the application for the permit was filed.

Getting to Know the Players 77 (c) Where a lawful action, decision or order of the agency is taken or made to prevent a condition which would constitute a threat to the health, safety, morals or general welfare of the community. (d) Where the applicant agrees in writing to extensions of time concerning his application. (e) Where the applicant agrees in writing or orally on the record during a hearing to the requirements, limitations or conditions imposed by the action, decision or order, unless the applicant expressly states in writing or orally on the record during the hearing that a requirement, limitation or condition is agreed to under protest and specifies which paragraph of subsection 1 provides cause for the protest. (f) For unintentional procedural or ministerial errors of the agency. (g) Unless all administrative remedies have been exhausted. (h) Against any individual member of the agency. NRS 278.0237 Actions Against Agency: Defenses; Attorney’s Fees, Court Costs and Interest; Remedy Cumulative. GENERAL PROVISIONS 1. It is a complete defense to any action brought under NRS 278.0233 against a political subdivision of this State that the final action, decision or order complained of was required by federal or state law or by a regulation of a state agency which became effective after the date on which the application for a permit was filed. 2. The court may award reasonable attorney’s fees, court costs and interest to the prevailing party in an action brought under NRS 278.0233. 3. The remedy prescribed by NRS 278.0233 is in addition to any other remedy provided by law.

So, under a statute such as this, you cannot sue individual members of the Board that just denied your permit; therefore, it does no good to threaten them individually. But, you can sue the city or town. This gives you things to talk about.

5.4.4 Municipal Counsel Somewhere there is a lawyer for the city or town. This person may be an employee of the municipality or the county or the firm may be private and hired on an annual retainer. This person may be called the Town Counsel, City Attorney, County Attorney, or perhaps even District Attorney. Being the sort of take-charge person that you are, you may be tempted to phone such a person. Bad mistake. First, this person is probably more familiar with the laws than you are. If not, this person is still a lawyer and you are not. He or she has the upper hand. Second, this person is an advocate for the municipality, not a judge. You may start thinking: “Why doesn’t he see my side of the picture?” The answer is that this person is listening carefully to what you say. If you have disobeyed this advice, called directly and gotten through (we’ll discuss that in a minute), you may be telling the Town Counsel why the town is screwing you improperly. In other words, by complaining early, you may be teaching the attorney for the town how to screw you properly. Dumb idea.

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Why is it that this person may not even take your call? If the City Attorney is a private lawyer, the city is likely paying for every phone call that this person takes. So, the City Attorney may be under instructions to never take calls from the public, as calls from the public could just eat up the municipal budget. If the City Attorney is a city employee and working in the law department, you may have a better chance of getting through, but the City Attorney still doesn’t want to talk to the public, just his or her usual clients (city employees who are authorized to call the law department). The City Attorney will, however, usually take a call from your attorney, in the hope of avoiding expensive litigation. So heed this advice: Let the lawyers talk to each other, and speak to the city’s lawyer only through your lawyer. Here is just one example of why you should not talk to the City Attorney. Let’s say you call and complain that the City Planner is requiring you to apply for a Variance, when you know that you’ll never get one. It is only natural for the City Attorney to say: “I’m sure that the City Planner knows what he’s doing. Apply for a Variance.” You are now getting legal advice from someone who is clearly not your advocate. If you had hired your own attorney, you would have gotten independent guidance as to what the law requires in this situation. Your attorney may be quite ready to say: “That isn’t right. The requirement for a Variance is preempted by federal law.” But, you’ll never know that unless you hire your own attorney. As an engineer, you may be quite comfortable with the idea that you are the smartest guy in the room, but this doesn’t make you a lawyer. Remember, every lawyer has had at least four years of college and three years of law school. And, at the very least, you haven’t been to law school. Walter Reuther, then president of the United Auto Workers, when speaking about labor negotiations used to say: “If you can’t afford to get up from the table, you have no right to sit down at the table.” For your purposes, this means that if you cannot afford to defend a successful grant of required permits or appeal a failure to obtain necessary permits, you’ve presented yourself with a real risk. ’Tis a sad fact of life, but finances could determine the outcome of a tussle that may develop. There—you’ve been warned. So what’s the take-away message? Careful work on the front end of the project can shorten the time required and sweeten the outcome.

C HA P TER 6

Selected Applicable Law

This chapter summarizes some of the laws that you and your attorney will be dealing with in your tower-permitting adventure. Please forgive any duplications from earlier chapters, but it seemed appropriate to put as much as possible in one place for easy reference. Also, please forgive the fact that some topics not fully addressed in detail here include the Nationwide Programmatic Agreement, birds, historic preservation, consulting with Indian religious sites (because other publications exist especially devoted to those topics, including those readily available from government sources and the NAB Bookstore), and wetlands (because wetlands laws vary dramatically not only by state but also by city or town).

6.1 Covenant not to Complain or Compete Occasionally, you may find a situation comparable to one I found in Maine, where I am an owner of a commercial tower. I bought 25 acres out of a 40-acre plot. The owner was going to remain in a house on the 15 remaining acres he kept. What I did not want was for the owner, or more likely a subsequent owner, to become an enemy of the tower. So, I drafted the following covenant, which he signed in order to complete the deal. This may be a rare occurrence, but I’ve used it twice: Grantor understands and agrees that Grantee intends to use the premises herein conveyed for communications, which may involve the construction and use of one or more towers, communications equipment buildings, satellite dishes, and related structures, as well as equipment for both receiving and transmitting. Grantor, his heirs, and assigns hereby consent to and waive any objections to the lawful construction and use of such facilities, as well as radio and television reception and transmission. Grantor, his heirs, and assigns further agree to not permit the construction of a communications tower or any other communicationsrelated commercial use, including, but not limited to, competing radio and television use, on the remainder of the Grantor’s land or any other land in [name of town] now owned by or controlled by Grantor, or any affiliated entity or individual(s).

6.2 Preemption in the OTARD Rule Direct broadcast satellite (DBS), multichannel multipoint distribution service (MMDS), and television broadcast antennas are covered in the Over-the-Air Reception Devices (OTARD) Rule (47 CFR 79

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§1.4000). Unlike other preemptions, 47 CFR §1.4000 is intended to occupy the field. An offending regulation is “prohibited.” This means that if the regulation you face is covered by this rule and does not fall into one of the exceptions listed in (b)(1–3) below, it is not valid. In effect, you may ignore it. This rule is very helpful for TV broadcast service reception, small-dish satellite TV reception, wireless Internet service providers (WISPs), multipoint distribution service (MDS), MMDS, Instructional Television Fixed Service (ITFS), and other fixed wireless signals, such as wireless alarm antennas. One little-noticed provision is that antenna masts no higher than 12 feet above the roof line, if erected for the purposes of this rule, are essentially exempt from local rules. If the ridge pole, or roof, of a building is at a somewhat standard height of a three-story building or 36 feet, for example, and you want to go less than 12 feet higher than that, for a total of almost 48 feet, and the use falls into one of the permitted categories, have fun! Also, be sure to pay attention to the “reasonable fee” requirement of (a)(4) below. Here’s the full text: CHAPTER I—FEDERAL COMMUNICATIONS COMMISSION Subpart S—Preemption of Restrictions That “Impair” the Ability to Receive Television Broadcast Signals, Direct Broadcast Satellite Services, or Multichannel Multipoint Distribution Services or the Ability to Receive or Transmit Fixed Wireless Communications Signals 47 CFR 1.4000 Restrictions impairing reception of television broadcast signals, direct broadcast satellite services, or multichannel multipoint distribution services. (a)(1) Any restriction, including but not limited to any state or local law or regulation, including zoning, land-use, or building regulations, or any private covenant, contract provision, lease provision, homeowners’ association rule or similar restriction, on property within the exclusive use or control of the antenna user where the user has a direct or indirect ownership or leasehold interest in the property that impairs the installation, maintenance, or use of: (i) An antenna that is: (A) Used to receive direct broadcast satellite service, including direct-to-home satellite service, or to receive or transmit fixed wireless signals via satellite, and (B) One meter or less in diameter or is located in Alaska; (ii) An antenna that is: (A) Used to receive video programming services via multipoint distribution services, including multichannel multipoint distribution services, instructional television fixed services, and local multipoint distribution services, or to receive or transmit fixed wireless signals other than via satellite, and (B) That is one meter or less in diameter or diagonal measurement; (iii) An antenna that is used to receive television broadcast signals; or (iv) A mast supporting an antenna described in paragraphs (a)(1)(i), (a)(1)(ii), or (a)(1)(iii) of this section is prohibited to the extent it so impairs, subject to paragraph (b) of this section. (2) For purposes of this section, “fixed wireless signals” means any commercial non-broadcast communications signals transmitted via wireless technology to and/or from a fixed customer location. Fixed wireless signals do not include, among other things, AM radio, FM radio, amateur (“HAM”) radio, Citizen’s Band (CB) radio, and Digital Audio Radio Service (DARS) signals.

Selected Applicable Law 81 (3) For purposes of this section, a law, regulation, or restriction impairs installation, maintenance, or use of an antenna if it: (i) Unreasonably delays or prevents installation, maintenance, or use; (ii) Unreasonably increases the cost of installation, maintenance, or use; or (iii) Precludes reception or transmission of an acceptable quality signal. (4) Any fee or cost imposed on a user by a rule, law, regulation or restriction must be reasonable in light of the cost of the equipment or services and the rule, law, regulation or restriction’s treatment of comparable devices. No civil, criminal, administrative, or other legal action of any kind shall be taken to enforce any restriction or regulation prohibited by this section except pursuant to paragraph (d) or (e) of this section. In addition, except with respect to restrictions pertaining to safety and historic preservation as described in paragraph (b) of this section, if a proceeding is initiated pursuant to paragraph (d) or (e) of this section, the entity seeking to enforce the antenna restrictions in question must suspend all enforcement efforts pending completion of review. No attorney’s fees shall be collected or assessed and no fine or other penalties shall accrue against an antenna user while a proceeding is pending to determine the validity of any restriction. If a ruling is issued adverse to a user, the user shall be granted at least a 21-day grace period in which to comply with the adverse ruling; and neither a fine nor a penalty may be collected from the user if the user complies with the adverse ruling during this grace period, unless the proponent of the restriction demonstrates, in the same proceeding which resulted in the adverse ruling, that the user’s claim in the proceeding was frivolous. (b) Any restriction otherwise prohibited by paragraph (a) of this section is permitted if: (1) It is necessary to accomplish a clearly defined, legitimate safety objective that is either stated in the text, preamble, or legislative history of the restriction or described as applying to that restriction in a document that is readily available to antenna users, and would be applied to the extent practicable in a non-discriminatory manner to other appurtenances, devices, or fixtures that are comparable in size and weight and pose a similar or greater safety risk as these antennas and to which local regulation would normally apply; or (2) It is necessary to preserve a prehistoric or historic district, site, building, structure or object included in, or eligible for inclusion on, the National Register of Historic Places, as set forth in the National Historic Preservation Act of 1966, as amended, 16 U.S.C. 470, and imposes no greater restrictions on antennas covered by this rule than are imposed on the installation, maintenance, or use of other modern appurtenances, devices, or fixtures that are comparable in size, weight, and appearance to these antennas; and (3) It is no more burdensome to affected antenna users than is necessary to achieve the objectives described in paragraphs (b)(1) or (b)(2) of this section. (c) In the case of an antenna that is used to transmit fixed wireless signals, the provisions of this section shall apply only if a label is affixed to the antenna that: (1) Provides adequate notice regarding potential radiofrequency safety hazards, e.g., information regarding the safe minimum separation distance required between users and transceiver antennas; and (2) References the applicable FCC-adopted limits for radiofrequency exposure specified in §1.1310 of this chapter.

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(d) Local governments or associations may apply to the Commission for a waiver of this section under §1.3 of this chapter. Waiver requests must comply with the procedures in paragraphs (f) and (h) of this section and will be put on public notice. The Commission may grant a waiver upon a showing by the applicant of local concerns of a highly specialized or unusual nature. No petition for waiver shall be considered unless it specifies the restriction at issue. Waivers granted in accordance with this section shall not apply to restrictions amended or enacted after the waiver is granted. Any responsive pleadings must be served on all parties and filed within 30 days after release of a public notice that such petition has been filed. Any replies must be filed within 15 days thereafter. (e) Parties may petition the Commission for a declaratory ruling under §1.2 of this chapter, or a court of competent jurisdiction, to determine whether a particular restriction is permissible or prohibited under this section. Petitions to the Commission must comply with the procedures in paragraphs (f) and (h) of this section and will be put on public notice. Any responsive pleadings in a Commission proceeding must be served on all parties and filed within 30 days after release of a public notice that such petition has been filed. Any replies in a Commission proceeding must be served on all parties and filed within 15 days thereafter. (f) Copies of petitions for declaratory rulings and waivers must be served on interested parties, including parties against whom the petitioner seeks to enforce the restriction or parties whose restrictions the petitioner seeks to prohibit. A certificate of service stating on whom the petition was served must be filed with the petition. In addition, in a Commission proceeding brought by an association or a local government, constructive notice of the proceeding must be given to members of the association or to the citizens under the local government’s jurisdiction. In a court proceeding brought by an association, an association must give constructive notice of the proceeding to its members. Where constructive notice is required, the petitioner or plaintiff must file with the Commission or the court overseeing the proceeding a copy of the constructive notice with a statement explaining where the notice was placed and why such placement was reasonable. (g) In any proceeding regarding the scope or interpretation of any provision of this section, the burden of demonstrating that a particular governmental or nongovernmental restriction complies with this section and does not impair the installation, maintenance, or use of devices used for over-the-air reception of video programming services or devices used to receive or transmit fixed wireless signals shall be on the party that seeks to impose or maintain the restriction. (h) All allegations of fact contained in petitions and related pleadings before the Commission must be supported by affidavit of a person or persons with actual knowledge thereof. An original and two copies of all petitions and pleadings should be addressed to the Secretary, Federal Communications Commission, 445 12th Street, SW, Washington, D.C. 20554. Copies of the petitions and related pleadings will be available for public inspection in the Reference Information Center, Consumer and Governmental Affairs Bureau, Federal Communications Commission, 445 12th Street, SW, Washington, D.C. 20554. Copies will be available for purchase from the Commission’s contract copy center, and the Commission decisions will be available on the Internet.

An excellent Information Sheet on the OTARD rule assembled by FCC staff may be found at http:// www.fcc.gov/mb/facts/otard.html. The Information Sheet also contains a number of useful links to existing FCC decisions that are very enlightening. Cities and condominium associations that are

Selected Applicable Law 83 frequently joined by the Community Associations Institute (CAI) may hate this rule, but it is likely that readers of this book will love it. This is the rule that allowed Continental Airlines to provide a Wi-Fi hotspot within the premises of its “President’s Club” frequent flyer lounge at Boston–Logan International Airport despite litigation by the airport. If this subject particularly interests you, be sure to read the Order on Petitions for Reconsideration (and other matters) at http://www.fcc.gov/Bureaus/ Cable/Orders/1999/fcc99360.doc. For the convenience of readers, the full text printed here may be found on the CD, filename FCC OTARD Rule.pdf.

6.3 Common Covenants and Restrictions Common covenants and restrictions (CC&Rs) are normally associated with the purchase of a home or condominium controlled by a homeowners’ association. Nonetheless, for business purposes, you may be forced to consider the purchase or rental of an “office condo” or a building in an industrial park that may have CC&Rs. Think carefully. Walk away if you can. If you just can’t walk away, here are some strategies. Unless you fall into an exception such as the OTARD rule, federal law is not easily going to help you. It may help, but it may well require litigation. Let’s assume that you have also discovered that state law is unlikely to help you and get into some serious discussion for people who are determined to go ahead anyway. Here are some tips.

6.3.1 Retain a Lawyer Early In all likelihood, you are going to pay a lawyer to represent you in closing on the building or negotiating the lease. So why not hire that lawyer a few months earlier to obtain advice on state law and local zoning, as well as trying in advance to avoid the impact of CC&Rs? It is a good idea. And, remember, just because you feel comfortable with the CC&R situation does not mean that you’ve passed through the zoning hoop. You may need both. In parts of Texas, there may be no zoning—but there may be CC&Rs that will make the erection of your necessary antenna system impossible. In parts of Michigan there may be no CC&Rs, but difficult zoning issues. In parts of Pennsylvania, you may have both. Ask your lawyer to look over the entire scene.

6.3.2 Obtain the CC&Rs Before You Agree to Buy Here is the system used by John T. Langdon of Texas: Search for property that meets your location and terrain needs. When you find a possible piece, ask the real estate agent to fax you the CC&Rs. If they make reference to antennas or approvals by an architectural control committee (ACC) or a property owners’ association (POA), move on to the next property. If it is a new property, or is yet to be built, where the developer still owns the house or building and land (and is the ACC), and can grant Variances and/or approvals to the CC&Rs, seek and obtain such approval. Make sure that you include language ensuring that this approval cannot be withdrawn or modified by a future ACC or homeowners’ association (HOA), and include a drawing of the proposed tower. All this becomes a contingency in a formal offer on the property.

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If there is no reference to approvals, then go down to the courthouse and get the Declaration yourself to make sure the agent didn’t fax you the stuff on Horse Apple Industrial Park Phase IV, instead of Phase V, etc. Sometimes there will be a different filing for “Bozo Acres” Phase 9 than for Phases 1 to 8. I heard a story about a particular development that had failed to file anything for “Phase 9.” The sellers, the HOA, and the realtors all assumed the Declaration was the same as the other parts of the development, but in fact there were no restrictions at all for that section! Sometimes it really pays to do your homework. When you are satisfied, then look into whether or not a Building Permit is required for a tower and how successful others have been at getting a Tower Permit actually issued in that municipality or county. If you must buy property with an ACC and/or anti-antenna CC&Rs, get a good broadband connection and begin planning your remote antenna site, starting with the property search above. Sometimes you just get lucky. Here’s a story told by radio ham Larry Burke, WI5A: This is nearly exactly the situation I found myself in when I bought the property my house sits on today. The owner had four adjacent parcels of land, roughly 3/4 acre each. One of the four was already sold when I was shopping for the land. Prior to my purchase, the real estate agent provided me with the “deed restrictions” for my lot. I checked the county courthouse . . . nothing was filed. Bought the lot, built my stuff . . . house, towers and all. The seller and his lawyer later conceded that my lot, indeed, had no restrictions since they had neglected to file them at the courthouse. They promptly filed them afterwards. Now the remaining two have restrictions!

In any event, here’s an especially dangerous, but non-obvious deed restriction to beware of: “engaging in any loud, noxious, or offensive activities that disturb the peace and quiet” of other owners or tenants. The problem here is that the federal government has completely preempted the field of television interference (TVI) or radiofrequency interference (RFI), but preemption may not be a valid defense in state court to a complaint by an adjacent owner or occupant under the CC&Rs.

6.3.3 Make a Contingent Offer Sometimes you’ve just got to ask! But, before you just try filling in the blanks in the following document yourself, remember the prior instruction and hire a lawyer early. The problem with a layman using the following form is determining whether or not the signer is authorized to sign it and thereby bind the POA or ACC. Let’s repeat that. The question of whether or not the developer, in the absence of a property owners’ association, can act as the agent for other owners in the building or subdivision is a question of fact that must be proven at trial. You’ll probably want a really good recitation of facts in the developer’s authorization, especially if the authorization appears to fly in the face of the express wording of the covenants. If you don’t understand this paragraph, this is even more proof that you should be using a lawyer early on.

Selected Applicable Law 85 Here’s some more wisdom from Jim O’Connell, Esq., of the Illinois Bar, referring to a contract add-on for CC&Rs in new construction: Here’s my contract add-on for new construction in “builder as developer” CC&R situations. Where the builder/developer is involved, they’re often agreeable to exempting your antenna tower from the architectural approval process during the initial phase of sales. The real estate purchase and sale add-on language requires the developer to grant permission as a condition to selling you the lot or building. As for existing covenants in a developed area, my recommendation is to tell your real estate agent that you’re not interested. If you’ve already purchased and just discovered the CC&Rs that prohibit any outside antenna, find another real estate agent and move on. I hate listening to someone complaining about an attorney’s fee to deal with the lawsuit seeking to remove the antenna support structure. Remember, in most states, if you’re subject to CC&Rs, any other property owner subject to the same restrictions can sue you to remove the antenna. Most such restrictions provide that the owner in violation must pay attorney’s fees to the winner of the lawsuit. Spend a few bucks on a lawyer before you make that offer!

Here’s a contract (offer to purchase) add-on to help protect your desire to erect an antenna when you make an offer. This version is useful when you’re dealing with the builder/developer of a new office park. Often, the builder controls the property owners’ association or the architectural committee until all or most of the lots are sold, or retain approval rights forever. Getting the necessary approvals as a condition of your offer to purchase is key to your success. Mind the caution at the end!!

Addendum to offer to purchase between __________________________________, Buyers, and _________________________________, Sellers, for the purchase of the property at ___________________________________________________. A. Buyer has informed Seller that Buyer is an FCC- licensed [broadcaster, WISP, etc.], and Seller warrants that no covenants, conditions, restrictions of record, architectural committee or property owner association rules or regulations presently exist or will be recorded prior to closing that would or that may be construed to restrict or prohibit Buyer, from and after closing and delivery of the premises, from installing and maintaining an outdoor antenna system with supporting structure not less than ________ feet in height on the property. Seller further agrees that no such covenants, conditions or restrictions of record affecting the subject property will be imposed by Seller or his transferees or assigns in any plat of subdivision or Planned Unit Development agreement recorded prior to closing. B. Seller agrees to provide Buyer, within fourteen (14) days of the signing of this agreement, and again ten (10) days prior to closing, with a copy of the recorded plat of subdivision and all other documents showing all covenants, conditions or restrictions of record, homeowner association rules or regulations running with the land or affecting the property. Should such covenants, conditions, restrictions of record, property owner association rules or regulations exist on either date such that Buyer’s installation of the aforementioned antenna(s) and support structure may be inhibited or precluded, then at Buyer’s option this contract may be deemed null and void, all obligations of both parties cancelled, and all deposits refunded promptly.

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C. Seller further agrees that, that to the extent Seller is the owner of property located within 300 feet of the subject property, Seller will provide Buyer with a statement that Seller, as owner of adjacent properties, has no objection to the granting of a building permit for an antenna support structure, and antenna system, by the local municipality or appropriate governmental body. D. Seller also agrees, to the extent that Seller controls any Architectural Committee, Property Owners Association or similar committee from which permission is required for installation of Buyer’s antenna(s) and support structures, that Seller will grant or cause to be promptly granted such permission upon application by Buyer. The promises and covenants by the Seller contained in Paragraphs A through D hereof shall survive the closing of this transaction, notwithstanding the delivery of the deed by Seller. ___________________________________________________ Buyers ___________________________________________________ Sellers Dated: _______________, 2009 (CAUTION: This document was prepared in consideration of the laws of the State of Illinois. Real estate law varies among the states, and you should consult an attorney prior to entering into any real estate transaction. If you screw it up, you’ll have only yourself to blame.) James C. O’Connell, W9WU, Attorney at Law

See filename Addendum to Real-Estate Offer-CC&R.doc on the CD. Why would a developer agree to allow a broadcaster or WISP to be exempt from the CC&Rs that control others? There are several scenarios: ●

●

●

The developer has put a lot of money into preparing the development—in legal fees, land clearing, roads, sewers, and so forth—and really, really needs some income fast. The developer never really gave any thought to the question of antenna systems, and the offending clause was put there when the lawyer for the development copied it in from a standard form. With sufficient lot size and tree cover, the clause is really irrelevant. The developer has sold most of the lots and built most of the buildings and is down to the last few. Confident that these last remaining lots can be sold with or without such protection, the developer no longer cares.

6.3.4 Prepare to Erect Fast If you’ve managed to obtain permission from the developer while he comprises the entire property owners’ association or architectural control committee, build fast. He could sell the last lot and be gone next month, leaving you in the hands of a new POA or ACC. For this reason, you want a local attorney to be sure that your waiver will last beyond the developer’s departure. Building fast adds to your legal posture. It could, for example, prevent a later purchaser from bringing suit—on the grounds

Selected Applicable Law 87 he knew when he bought that your antenna system was there. To prove when your antenna system was built, take dated photos, get a Certificate of Use or a Certificate of Completion from the local Building Inspector, and do whatever it takes to prove that your antenna system was up before the potential complainant bought in. Other ideas: Take a photo of young children standing next to your structure (you can introduce a child later as evidence). Write the date of the pour into the concrete.

6.3.5 Notice of Violation Received Against the advice you received, you bought a lot or building with CC&Rs. Now you’ve received a nasty letter from someone who seeks to enforce a common covenant or from the POA. ●

●

Look hard at the definitions to see if your antenna system is included. Look at the definition of “structure” (and hope that it talks about habitable space). Look at the definition of fixture (and hope that it talks about something attached to an outside wall). Figure out if you have received the letter because you didn’t first apply to the architectural control committee or because you have violated a specific rule. If the covenant requires you to apply to the ACC, but there is no ACC anymore (it happens, sometimes because the development has been built out), ask your lawyer if “impossibility of performance” would be a defense in your situation.

Despite stern warning from wiser heads, there will always be people who, for one reason or another, find themselves occupying land with CC&Rs. For that situation, here is Attorney Phil Kane’s approach. This was a situation where the POA’s counsel had threatened sanctions against the occupant after forcing compliance with a CC&R rule regarding antenna visibility (see filename POA Counsel Letter. doc on the CD).

Dear Property Owners’ Association Counsel: My client intends to abide by all reasonable provisions of the recorded Covenants, Conditions, and Restrictions (“CC&Rs”) and By-Laws of the POA. My client retains the right to erect any and all antennas that do not violate CC&R §[XYZ] by being “visible to the public view” with the understanding that this is interpreted in terms of the reasonable observer using reasonable means to make the observation from a place where the observer has a right to be without requesting permission from my client to be there. My client retains the right to operate licensed radio transmitter(s) in accordance with the terms of valid and current FCC license(s), as well as applicable statutes and regulations. Said operation will, by virtue of holding a current license therefor, be presumed to be in the public interest, convenience, and necessity absent a specific ruling to the contrary from the Federal Communications Commission (“FCC”) [see 47 USC §309(a)] and will be presumed to be in compliance with all FCC rules and regulations absent a specific determination to the contrary by the FCC. My client will handle issues of unwanted interference caused by improper technical operation of my client’s equipment by bearing the responsibility to take the required steps to bring equipment into compliance with FCC regulations, and will cease operations while it is in

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noncompliance, with the exception of reasonable tests to determine the effectiveness of attempted adjustments, repairs, or remedial measures. If unwanted reception is caused by conditions beyond my client’s control, my client will assume the obligation to reasonably cooperate with the affected party or parties to determine how to prevent such unwanted reception and to make a reasonable number of tests to assist the affected party or parties in determining the effectiveness of any remedial measures, but please note that there is no obligation to, and will my client not attempt to, repair or replace any home entertainment or other electronic equipment of the affected party or parties, especially equipment which may be subject to FCC Part 15 rules, nor is my client obligated to cease operations that are in compliance with FCC regulations and technical standards. We will regard any unilateral attempts by [the Landlord or the Association] to impose restrictions on radio operations, beyond the parameters outlined above, as unreasonable and an interference with my client’s own “right of quiet enjoyment and use” of the property, especially where the correction of the problem is in the hands of the complainant. We are prepared to secure and defend those rights as necessary. We trust that the situation will not come to that point. As you stated in your letter, “I am hopeful that this matter has been resolved and no further action will be necessary.” I echo that stance. Sincerely, [Name of Attorney], Attorney for [Client]

As usual, use of the above approach is on the basis of “your mileage may vary.” Phil Kane, a former FCC staffer himself, wishes everyone success! Once court papers (a complaint) have actually been filed, the defense must begin. Find the right lawyer. This is litigation and there are many lawyers who simply do not do it—just as there are many doctors who do not do surgery. Investigate the possibility of asking your title insurance company to defend you. There is also no harm in asking your property owner’s insurance company to defend you. Let’s examine lines of argument against enforcement of a covenant or restraint. A special thanks to Sid Leach, Esq., based in Houston, TX, where he practices with a large multi-state general practice law firm and whose article “Federal Preemption of Deed Restrictions” (DX Magazine, May/June 1993, pp. 36–40) developed some of these theories. Chris Imlay, Esq., General Counsel, SBE, also contributed to this section.

6.3.6 Federal Law Prohibits Enforcement of this CC&R Shelley v. Kraemer, 334 U.S. 1 (1948), held that a restrictive covenant “against the occupancy as owners or tenants of any portion of said property for resident or other purpose by people of the Negro or Mongolian Race” could not be enforced in a state court. That famous case stands for the principle that a restriction against public policy will not be enforced by the courts. A federal preemption, it can be argued, is a clear public policy. Thus, a court is still free to find that a deed restriction is against public policy.

Selected Applicable Law 89

6.3.7 State Law May Prohibit Enforcement of this CC&R You can never tell what an inventive lawyer might find in your state in the way of a phrase in the state constitution or a statute that could prove useful in battling a CC&R. In addition, common law does not favor restrictions on land, and all ambiguities in restrictions are read against the drafter.

6.3.8 As a Matter of Equity, the Court Should not Enforce the Covenant A court need not enforce a deed restriction that would result in an inequity. Before considering any of the following defenses to a complaint, however, the property owner (or tenant) must recall perhaps the most famous of all equity maxims: “He who comes into equity must do so with clean hands.” So it helps if you never knew about the restriction you are now accused of violating or if you can show that the covenant was effectively terminated before you bought the land. An inequity results in cases of one or more of the following: ●

●

●

●

●

●

●

Harm exceeding benefit—Enforcing the covenant would be unreasonable because the resulting harm to the homeowner is greater than the benefit produced. You can claim that the harm is to emergency communications and the benefit is ephemeral, especially where the outdoor antenna is hardly visible (for example, a panel antenna painted to match the wall on which it is mounted) or visible only when in use (a retractable structure). See Katzman v. Anderson, 359 Pa.438, 59 A.2d 85 (Pa. 1948). Acquiescence—The CC&Rs are not being enforced against other antennas in the development (for example, CB radio, VHF mobile radio, weather satellite dishes). However, just as a warning, failure to complain about rooftop TV antennas was not sufficient to estop a complaint about a 40-foot tall freestanding CB radio antenna. See Reed v. Williamson, 164 Neb. 99, 82 N.W. 2d 18 (1957). Abandonment—Some lots (usually subsequent lots) are sold subject to the covenants and others are not. Laches—Deed restriction enforcement is delayed. Estoppel—The benefited party (in a practical sense, the developer) led you to believe that the CC&Rs would not be enforced against you with respect to an antenna system and you relied upon such a representation. Try to find something in writing that led you to believe that the covenant against antennas would not be enforced. Changed conditions—The owner or tenant would have to claim that the character of the development has changed so much that it is impossible that enforcement of a restriction will yield the benefit of the restriction. Such a circumstance is likely to be rare. Clean hands (the other guy’s)—A rewrite of “He who comes into equity must do so with clean hands” is “People who live in glass houses shouldn’t throw stones.” A court is not required to grant a decree in equity (briefly, a civil proceeding where someone seeks a court order, not money damages). Read all of your property owner rules and regulations, in the hope that you will find one that the complaining neighbor has violated. If the neighbor who seeks to

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6.4 Local Zoning Bylaws and Ordinances The local law that applies to you is the local law. It is not any of the following: ●

What the real estate agent told you

●

What the homeowner now trying to sell you the house told you

●

What the counter clerk said when you dropped by Town Hall to inquire

●

What the Building Inspector told you, unless he or she looked it up almost right then

●

What another business in town told you, including a two-way radio dealer

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What another business or two-way radio dealer in a neighboring town told you

Got that? The local law is only what the local law says during your Building Permit (and if necessary, Special Permit) application process. You wouldn’t be the first company to buy a property and then apply for a Tower Permit, only to discover that the bylaw or ordinance is changing before your very eyes, with the passage of a new or modified “Wireless Communications Facilities” ordinance. So, once you embark on the process of buying or renting, acquire the entire local bylaw (all of it, not just a photocopy of what a clerk tells you is the relevant section) and start your subscription to the local paper (reading the legal notices to see if some Board is proposing a change that will affect your ability to erect an antenna-support structure).

6.4.1 Vested Rights If, during the course of your research, interviews, and reading of the local newspaper, you discover that the local bylaw is about to be changed, then you may decide that the time has come to scramble. Get that application in right away. If some portion of the process has begun, then you may need to know how to “freeze” the bylaw so that you may obtain a permit for a structure that may not be possible to obtain later, or which may be horribly more expensive later. Freezing the bylaw can usually be done two ways: plan freezes and non-plan freezes. With a plan freeze, sometimes known as an ANR freeze (from the phrase “approval not required”), you submit a plan of some sort—to subdivide your property in some way (don’t worry; you’ll still own it all). Plan freezes involve a highly specialized area of law and you will need the aid of a local real estate attorney, as well as a surveyor. For non-plan freezes, your rights may “vest” as a result of your actions. There are many things you can do to help yourself create vested rights, and you should start doing them immediately. Your state may

Selected Applicable Law 91 have a statutory non-plan freeze if you should obtain the Building Permit and start building but do not finish before the new bylaw takes effect. Your state may also allow a common-law non-plan freeze. Here are a variety of facts that help applicants claim common-law vested rights: ●

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●

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An applicant can put himself in a position to apply before the effective date of the zoning change. So don’t grant the seller a delay of the closing on your parcel. Also, make sure you have all application requirements on hand—including a plot plan and construction plans for the structure. An applicant can submit as complete an application as possible, as soon as possible. An applicant can engage in site preparations that exceed the barely begun threshold. This probably means that pounding stakes into the ground to show the approximate position and laying out string is not enough. However, surveying, land clearing, and obtaining delivery of construction materials (rebar, sand, gravel), plus tower lattice sections, guy anchors, and antennas could be useful. An applicant can incur and keep track of substantial expenses, such as paying for surveying, land clearing, construction materials, parts, and so forth. If there are required preliminary steps (the prerequisites for issuance) under the present bylaw, you should diligently pursue approvals required from the Highway Department, the police, the Fire Department, the Health Department, the Conservation Commission, and so forth. An applicant can keep track of any actions by the town that could later be considered acts of bad faith, such as requiring submission of additional information not required of other applicants, losing papers previously submitted, or mysterious delays in site plan approval. An applicant can demand issuance of the permit as of right (and document the demand!) before the zoning change becomes effective. A court may consider it critical that the Building Commissioner had the authority to issue a Building Permit before the new bylaw became effective, especially if the issuance of the permit should have been a ministerial act.

These are all actions that can lead to the creation of vested rights. For a very good discussion of the common law of vested rights or non-plan freezes, interestingly enough with respect to a 460-foot tall commercial tower, see Franks v. DiRico, MA Superior Court, August 26, 1997, 1997 Mass. Super. LEXIS 282 (see filename Franks v DiRico.pdf on the CD). Here is another example of common-law vested rights, from a different jurisdiction, cited by Justice E. Susan Garsh in the Franks case. Addressing Mattson v. City of Chicago, 411 N.E.2d 1002, 89 Ill. App. 3d 378, 44 Ill. Dec.636 (1980), she wrote: Every division of the Department of Buildings had approved the building plans, and all processing had been completed except for the actual physical issuance of the permit, and both the approval of the applications for the building permit and demolition occurred prior to introduction of the zoning amendment . . . [T]he court held that a vested right arose where the plaintiff had expended substantial funds and issuance of the permit was purely ministerial.

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For additional information, see Land Use Law, 4th ed., by D. L. Mandelker (1997, Section 6.13); Land Use Planning and Control Law, by J. C. Jurgensmeyer and T. E. Roberts (1998, Section 5.27); and “Zoning Estoppel: Application of the Principles of Equitable Estoppel and Vested Rights to Zoning Disputes,” by D. G. Heeter (1971, Urban Law Annual, 63, 66). Should you find yourself in one of these situations, be sure to inform your attorney that you actually obtained all the required permits and started building before the bylaw changed. There is a difference between vested rights and equitable estoppel. You may be entitled to both. In sum, if the relevant bylaw might change or actually does change midstream, then you and your attorney should look at a variety of distinct responses, depending on your facts: ●

A plan or statutory zoning freeze

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A non-plan, but still statutory, zoning freeze

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A non-plan, common-law zoning freeze (vested rights)

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A non-plan claim of equitable estoppel, to prevent enforcement of the new bylaw.

The essence of the situation is that the local bylaw controlling your situation is the one in effect at the time your Building Permit is granted, not the law at the time you applied. There are ways to help yourself, but the message is still clear—the law is only what is on the books at the relevant moment in time, unless it is overridden in some way or unless you and your attorney fashion a strategy to work your way through it.

6.5 Building Codes Generally, a building code is statewide. Sometimes it is local. There may be places where it is rather brief, however, and subject to a great deal of interpretation by the Building Inspector or Building Commissioner as to what must be done to make the construction safe. As with local law, the building code is only what the building code says. Unlike the local zoning bylaw, however, it is probably unnecessary to buy the entire state building code. It is probably several volumes thick, and it is enough to read the relevant portions at a local library, or by simply asking the Building Inspector if you can read his or her copy at the counter (and photocopy the relevant pages). An incomplete (but more useful than anything else known to the author) chart of building codes may be found at http://www.wirelessestimator.com/t_content.cfm?pagename⫽State Building Codes.

6.5.1 The BOCA Code The Building Officers and Code Administrators (BOCA) code intends to replace the International Building Code of 2003 (IBC 2003); however, many jurisdictions are still controlled by the older IBC code. In general, you need to understand only a few IBC sections. Here they are, as they appear in the Massachusetts version (780 Code of Massachusetts Regulations [CMR], Sixth ed., 2/7/97, effective 2/28/97), but any state building code based on the new IBC 2006 code should be similar, to the point of even having similar numbering. Don’t worry about the fact that §3109.1 talks about reception, because (1) the antenna is for reception, and (2) regulation of transmission is an FCC matter, and, for these purposes, has been preempted.

Selected Applicable Law 93 780 CMR 3108.0 Radio and Television Towers 3108.1 General: Subject to the structural provisions of 780 CMR 1611.0 for wind loads and the requirements of 780 CMR 1510.0 governing the fire resistance ratings of buildings for the support of roof structures, all radio and television towers shall be designed and constructed as herein provided. 3108.2 Location and access: Towers shall be located and equipped with step bolts and ladders so as to provide ready access for inspection purposes. Guy wires or other accessories shall not cross or encroach upon any street or other public space, or over any electric power lines, or encroach upon any other privately owned property without written consent of the owner. 3108.3 Construction: All towers shall be constructed of approved corrosion-resistant noncombustible material. The minimum type of construction of isolated radio towers not more than 100 feet (30480 mm) min. height shall be Type 4. 3108.4 Loads: Towers shall be designed to resist wind loads in accordance with EIA 222-E listed in Appendix A. Consideration shall be given to conditions involving wind load on ice-covered sections in localities subject to sustained freezing temperatures. 3108.4 Dead load: Towers shall be designed for the dead load plus the ice load in regions where ice formation occurs. 3108.4.2 Uplift: Adequate foundations and anchorage shall be provided to resist two times the calculated wind uplift. 3108.5 Grounding: All towers shall be permanently and effectively grounded. 780 CMR 3109.0 Radio and Television Antennas 3109.1 Permits not required: A building permit is not required for roof installation of antennal structures not more than 12 feet (3658 mm) in height for private radio or television reception. Such a structure shall not be erected so as to injure the roof covering, and when removed from the roof the roof covering shall be repaired to maintain weather and water tightness. The installation of any antenna structure mounted on the roof of a building shall not be erected nearer to the lot line than the total height of the antennal structure above the roof, nor shall such structure be erected near electric power lines or encroach upon any street or other public space. 3109.2 Permits required: Approval shall be secured for all roof mounted antennal structures more than 12 feet (3658 mm) in height above the roof. The application shall be accompanied by detailed drawings of the structure and methods of anchorage. All connections to the roof structure shall be properly flashed to maintain water-tightness. The design and materials of construction shall comply with the requirements of 780 CMR 3108.3 for character, quality, and minimum dimension. 1611.1 Wind load zones: The locations of wind load zones are shown in the figures 1611.1A, 1611.1B, 1611.1C maps. Zone 1 consists of the Counties of Berkshire, Franklin, Hampshire, and Hampden; Zone 2 consists of the County of Worcester; and Zone 3 consists of the Counties of Essex, Middlesex, Suffolk, Norfolk, Plymouth, Bristol, Barnstable, Dukes, and Nantucket. 1611.2 Exposures: Exposure is defined as a measure of terrain roughness and is classified as follows: Exposure A: centers of large cities and very rough, hilly terrain. Exposure A applies for downtown areas only when the terrain for at least one half mile upwind of the structure is heavily built up, with at least 50% of the buildings being in excess of four stories, and when Exposure B prevails beyond this boundary.

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Exercise caution in using these reduced wind pressures for buildings and structures on high ground in the midst of cities or rough terrain. Exposure B: suburban areas, towns, city outskirts, wooded areas, and rolling terrain. Exposure B applies only when the terrain for at least one half mile upwind is a continuous urban development, forest, wooded area, or rolling terrain. Exposure C: open level terrain with only scattered buildings, structures, trees or miscellaneous obstructions, open water, or shorelines. 1611.4 Reference wind pressures: Reference wind pressures for the various exposures and wind zones are given in the following Table 1611.4. The tabulated pressures are combined windward and leeward pressures representing the overall effect of the wind on essentially rectangular structures, and account for typical gust effects as found in ordinary buildings. These pressures do not account for buffeting or channeling caused by positions of nearby structures, vortex shedding, or wind sensitive dynamic properties of a particular structure. Excerpts from Table 1611.4 for locations on or near the Massachusetts seashore Height Above Grade (ft)

Reference Wind Pressure (pounds per square foot) Zone 3 Exposure A

B

C

50–100

14

21

31

100–150

18

26

37

150–200

22

30

41

6.5.2 ANSI TIA/EIA-222-F Standard Your state building code may or may not reference, copy, or mimic the ANSI standard TIA/EIA-222-F, “Structural Standards for Steel Antenna Towers and Antenna Supporting Structures.” If your state building code does refer to wind speed, however, it may use a table (such as the excerpted portion from Massachusetts Table 1611.4 above) to list the wind load permitted, or, putting it another way, the wind speed for which an antenna-support structure must be designed. TIA/EIA-222-F, Annex A, §2.3.3B, states: “The basic wind speed from Section 16, the equations for the exposure coefficient (Kz) and the gust response factor (Gh) are based on wind conditions in open, level country and grasslands.” This means that if you are in a valley, protected by rolling hills, or protected by surrounding forested lands, you may not need to meet the highest wind-speed standard. If you have any doubt, seek the services of a professional engineer to make sure what part of which standard applies to your particular situation. With thanks to the website wirelessestimator.com, here is an introduction to the current issues of EIA/ TIA-222-F or G, and the BOCA Code.

Selected Applicable Law 95 Revision G is a go in Florida and Ohio but stalls throughout the nation following IBC adoption January 1, 2008—TIA/EIA-222-G, the long-awaited revision of the structural standard for antenna supporting structures and antennas took effect January 1, 2006. Two years later the only states to adopt it are Florida and Ohio. Since it is a voluntary standard and has no legal bearing, it only gains formidable strength when it’s referenced by the International Building Code (IBC) or any other code, and that code is adopted by a permitting jurisdiction. Unfortunately, Revision G wasn’t passed in time to be reviewed and adopted by the IBC 2006 committee and Revision F remained the controlling standard. Last September the publishing of the IBC 2007 supplement made it official, Revision G is now the sanctified standard in the building code bible, but there is an excellent chance that it will not be enforced by some local jurisdictions for years to come, if ever. ADOPTION DOESN’T MANDATE ITS USE A number of industry publications and bulletin boards have left the impression that the IBC’s adoption now mandates the use of the new revision, but that is not the case throughout the nation. Revision G is legally applicable in the State of Florida because the 2004 Florida Building Code was amended December 8, 2006, referencing the newest revision of the standard—not because it was adopted by the IBC. The 2007 Ohio Building Code, effective July 1, 2007, uses IBC 2006 and did not adopt the IBC 2007 Supplement; however, it has ANSI/TIA-222-G 2005 in its “Referenced Standards.” The code referencing and adoption process is a long, sometimes arduous procedure that can oftentimes take years. The first IBC Code (2000) was the culmination of an effort that started in 1997 by representatives of Building Officials and Code Administrators International, Inc. (BOCA), International Conference of Building Officials (ICBO), and Southern Building Code Congress International (SBCCI) to have a comprehensive set of unified regulations. Numerous states such as Arkansas and Indiana are still using IBC 2000 and almost half of all states use IBC 2003. When California adopts IBC 2006 on January 1, 2008, they will be the one of a dozen states using IBC 2006 statewide. However, Revision F will still be used since it is necessary for states to adopt the IBC 2007 supplement in order for Revision G to be in force, according to Gretchen Hesbacher of the International Code Council. However, even if a local permitting authority hasn’t adopted the IBC 2007 supplement, building officials might require the most current national tower standard, especially if they feel that the standard provides more stringent provisions. Plans examiners are more familiar with Revision G’s newly introduced three second gust wind, the new ice loads, the use of LRFD design procedures, and the seismic provisions that were all included to be more like design requirements that the building codes have for other structures.

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SPEC WRITERS CAN INCLUDE PORTIONS OR ALL OF REV G The entire standard or relevant parts of Revision G can be used as a supplement to a specification that also requires the structure to meet jurisdictional requirements. Purchasers can also request that the tower meet Revision F, if that is the applicable code, as well as Revision G. Whereas the new revision of the tower standard may not currently having legal bearing, it gets all of the strength it needs when the purchaser references it. Tower manufacturers are currently providing quotes for towers under both F and G revisions when requested. Their engineers are reluctant to discuss how, cost-wise, Revision G is affecting different types of structures, saying that they haven’t had the opportunity to develop meaningful data based upon the limited comparisons that have been made. According to David Brinker of Radian Rohn Products, initial findings show that when both revisions are compared, oftentimes the differences are due to the new 3-second wind not correlating with the old fastest-mile wind speed. In other cases, there is usually a good reason for the differences such as exposure or topographical feature considerations, explained the company’s chief engineer and member of the TIA committee that governs the standard. Engineer Myron Noble of Valmont Industries said that in general, those towers being designed under Revision G are somewhat lighter. However, he noted that Class lll structures (mostly governmental applications) and structures that are on top of hills are quite a bit heavier. Some towers in Florida analyzed under Revision G, thought to have reserve capacity, experienced unanticipated upgrade requirements when new tenants were added, causing tower owners to reassess their tower assets. Selecting more stringent design classifications in Revision G will be more expensive, but will also reduce the capacity of existing structures. Planners for the city of Jacksonville, FL, voted to use a Class III structure classification for all towers used in cellular communications, according to Morrison Hershfield. The consulting engineering and management firm said the ruling will adversely impact the structural capacity of cell towers, reducing them by approximately 13% on average. Class II is the default classification that includes cellular and PCS communications, as well as television and radio broadcasting. http://www.wirelessestimator.com/t_content.cfm?pagename ⫽ TIA EIA-222-G

6.5.3 The National Electrical Code Your jurisdiction may or may not have adopted the National Electrical Code (NEC), published by the National Fire Protection Association as NFPA 70, National Electrical Code. Whether or not it applies where you live, the NEC should never stand in the way of the grant of a permit for an antenna system, so long as only low voltage (less than 36 VDC) goes out to your antenna-support structure. You can find the NEC at the public library of most medium to large cities or you may order it from the NFPA website (http://www.nfpa.org/). For 110 volts to power a lighting system, however, you’ll need a licensed electrician and an electrical permit.

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6.6 Federal Law If you ever want to look up a federal regulation relating to radio, the prime source is http://www. gpoaccess.gov/cfr/index.html. It would be the prime source for any other federal regulation, too. Among insiders, one favorite source is http://www.hallikainen.com/FccRules/, which is updated frequently. As an example of looking up a federal regulation, if you’ve always wanted to know what the FCC’s 200-foot-height rule may really say, just go there and enter “200 feet.” You’ll be shown every reference in the FCC rules.

6.7 Federal Law Relating to TV Antennas, Satellite TV, WISPs, etc The FCC has issued almost a complete preemption with respect to over-the-air reception devices (known as the OTARD Rule or 47 CFR §1.4000). This FCC regulation was authorized by the U.S. Congress. The citation for that authorization is the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996). Sometimes called the TCA, it is found in the U.S. Code at 47 USC §332(c)(7). The prime source would be http://uscode.house.gov/, but it is hard to read. You might prefer http://www.law.cornell.edu/ and look at 47 USC §332(c)(7), which is much easier to read. As a starting point for understanding the OTARD rule, you might want to go to the FCC site and find the original FCC decision (this includes the reasoning of the Commission and is not the regulation itself, which is 47 CFR §1.4000): Report & Order, Memorandum & Opinion & Order, and Further Notice of Proposed Rulemaking in the matter of Preemption of Local Zoning Regulation of Satellite Earth Stations; Implementation of Section 207 of the Telecommunications Act of 1996, restrictions on Over-the Air Reception Devices: Television Broadcast Service & Multichannel Multipoint Distribution Service (IB Docket 95-59, CS Docket No. 96-83)(August 6, 1996), http://www.fcc.gov/Bureaus/Cable/Orders/1996_TXT/fcc96328.txt

One of the more interesting paragraphs from the FCC reads: The acceptable quality signal standard is different for devices designed to receive digital signals, such as . . . digital television (“DTV”) antennas. For these antennas to receive an acceptable quality signal, [they] must be installed where [they have] an unobstructed, direct view of the satellite or other device from that video programming service is received. Unlike analog antennas, digital antennas, even in the presence of sufficient over-the-air signal strength, will at times provide no picture or sound unless they are placed and oriented for optimal reception.

Here is an example of an OTARD win over a homeowners’ association. But first, a word of advice: Avoid misrepresenting what you are going to put up. Your mother told you to never lie. As Henry Kissinger has said: “The nice thing about the truth is that it is so much easier to remember.” This is a powerful rule, by the way. If you can fit under the rule, it is a complete preemption, not the limited preemption of, for example, the amateur radio preemption found at 47 CFR §97.15(b). It applies to both CC&Rs and zoning ordinances. Here is the FCC short description on the Potomac Ridge Homeowners’ Association case, and the FCC press release on the Meade, KS (municipality) case (also see filename Star Lambert v. Meade KS.pdf on the CD):

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Application for review of declaratory ruling preempting restrictions on the use of over-the-air reception DEVICES IMPOSED BY HOMEOWNER ASSOCIATION IN POTOMAC, MD. Denied Application for Review of a Declaratory Ruling (DA 97-2188), in re: Jay Lubliner and Deborah Galvin, concerning Potomac Ridge Homeowner Association antenna restrictions. The Order affirms Cable Services Bureau’s ruling that the Potomac Ridge restriction prohibiting externally mounted television broadcast antennas violates the Commission’s Over-the-Air Reception Devices Rule (47 C.F.R. Section 1.4000) by impairing reception of acceptable quality signal. Action by the Commission. Adopted: August 18, 1998. by MO&O. (FCC No. 98–201). CSB NEWS Report No. CS 97-20 CABLE SERVICES ACTION, July 22, 1997. CABLE SERVICES BUREAU PREEMPTS LOCAL RESTRICTIONS ON THE USE OF OVER-THEAIR-RECEPTION DEVICES IMPOSED BY MEADE, KANSAS The Cable Services Bureau has preempted an ordinance adopted by the City of Meade, Kansas that restricted the installation and use of satellite dishes. The Bureau found that the ordinance did not comply with the Commission’s rule (“Rule”) regarding over-the-air reception devices, which implements Section 207 of the 1996 Telecommunications Act. The Rule prohibits governmental and private restrictions that impair the ability of antenna users to install, maintain, or use satellite dishes and wireless cable antennas that are one meter or smaller in diameter and television signal antennas unless justified by safety or historic preservation considerations. This is the first order issued by the Bureau under the Rule. Star Lambert and the Satellite Broadcasting and Communications Association (“SBCA”) petitioned the Commission for a ruling on Meade’s ordinance. Star Lambert owns Stargate Enterprises, which is located in Meade. Stargate sells and installs Primestar satellite antennas, which are direct-to-home satellite antennas measuring one meter or less in diameter. SBCA is a trade association that includes among its members Primestar and other manufacturers, retailers, and distributors of satellite equipment and receiving devices. The order holds that: The Rule prohibits the ordinance’s requirement that an installer or antenna user obtain (1) a $5.00 permit prior to installation and (2) prior City approval of the antenna’s placement. These requirements conflict with the Rule’s prohibition of restrictions that unreasonably delay or prevent antenna installation, maintenance, or use that are not required by safety or historic preservation considerations. The “property setback regulations” in the ordinance regulating antenna placement violate the Rule because they are not described anywhere and therefore impermissibly delay or prevent antenna installation, maintenance and use. The $500 per day fine provided for in the ordinance is prohibited by the Rule because penalties of this magnitude are likely to deter installation and no justification was given for the amount. Commenting on the Meade decision, Meredith J. Jones, Chief of the Cable Services Bureau said, “This order strikes a blow for competition and for the consumer. If we cannot prevent unreasonable restrictions on the use of satellite dishes and other receiving antennas, competition in the market for the delivery of multichannel video will be stifled.” Action by the Chief, Cable Services Bureau, July 22, 1997, by Order (DA 97-1554). —FCC— http://www.fcc.gov/Bureaus/Cable/News_Releases/1997/nrcb7019.txt

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6.7.1 Memorandum on Using 47 CFR §1.4000 The texts mentioned above may be found most easily by starting with http://www.fcc.gov/csb/facts/ otard.html. This website provides links to the original FCC Dockets, the OTARD rule, and 47 CFR §1.4000. Note that links to 47 CFR §1.4000 are to a text that was accurate as of September 4, 1996; however, 47 CFR §1.4000 has been modified twice since then. The latest version of §1.4000 is presented here, as it has existed since November 20, 1998. The following commentary is intended to help a ham understand what is, and what is not, contained in the OTARD rule. Commentary on Selected Elements of FCC Decisions and Orders

From FCC 96–328, paragraph 20: 20. Third, a regulation will be deemed to impair a viewer’s ability to receive video programming signals if it precludes reception of an acceptable quality signal. We affirm the consensus opinion of commenters who discuss this issue that the signals that are protected here are signals intended for reception in the viewing area. (fn 46) Under this criterion, for example, our rule would invalidate a requirement that an antenna be placed in a position where reception would be impossible or would be substantially degraded. However, a regulation requiring that antennas be placed to the extent feasible in locations that are not visible from the street would be permitted under our rule, if this placement would not impair reception of an acceptable signal. Requirements that antennas be set back from the street could be deemed to impair reception if compliance would mean that the antenna could not receive an acceptable signal.

What are signals intended for reception in the viewing area? An easy way to determine this is to use a map obtainable from the station. Contact the office of the chief engineer or the sales department for a map showing Class B coverage, or obtain a map from The Television and Cable Factbook, by A. Warren (2009), showing the station’s designated market area (DMA). Viewers may also determine whether or not they are in the Class B coverage area by going to www. getawaiver.com, http://www.titantv.com, or www.shva.com—sites run by Decisionmark, a database company serving TV stations subject to the Satellite Home Viewing Act (SHVA). As a matter of strategy, picking stations that are affiliated with a major network (ABC, CBS, Fox, NBC, PAX, or WB) is likely to garner more sympathy for the cause of the potential TV watcher than a claim that the viewer wishes to watch an obscure, low-power, and distant station. In fact, the more distant the signal, the less likely the rule applies; however, many stations transmit signals intended for viewing 60 to 80 miles away. It would be difficult to maintain a claim that an antenna is necessary for Sporadic E or other forms of less-reliable propagation. From FCC 96–328, footnote 46 to paragraph 20: 46. Thus, for example, we would not offer the same protection to consumers seeking to install, maintain, or use antennas designed to receive distant TVBS signals.

Here, TVBS means TV broadcast signals. While footnotes to Opinions and Orders at the FCC do not have the same weight as a regulation in the Code of Federal Regulations, this footnote offers a hint at the response that could be expected if a matter were to be appealed to the FCC. So, it is very important to frame a request for a Building Permit for a TV antenna system in terms of a signal or signals within the Designated Market Area (DMA) or Class B signal strength area (watch out—they can be different) of the broadcast station.

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From FCC 96–328, paragraph 20–21: 20. . . . (A) regulation will be deemed to impair a viewer’s ability to receive video programming signals if it precludes reception of an acceptable quality signal. We affirm the consensus opinion of commenters who discuss this issue that the signals that are protected here are signals intended for reception in the viewing area. Under this criterion, for example, our rule would invalidate a requirement that an antenna be placed in a position where reception would be impossible or would be substantially degraded. However, a regulation requiring that antennas be placed to the extent feasible in locations that are not visible from the street would be permitted under our rule, if this placement would not impair reception of an acceptable signal. Requirements that antennas be set back from the street could be deemed to impair reception if compliance would mean that the antenna could not receive an acceptable signal. 21. In refining our rule to prohibit only restrictions that “impair” viewers’ abilities to install, use or maintain devices designed for over-the-air reception, we remove from the scope of this prohibition all restrictions that may affect, but do not impair, a viewer’s ability to install, use or maintain devices to receive video programming signals through over-the-air TVBS, MMDS, and DBS services. As discussed below, we also exempt certain regulations protecting safety and historic areas, even though the regulations may impair access to over-the-air signals.

Don’t get too greedy and insist that the town cannot even require a Building Permit. The inspections that accompany the building process under a Building Permit exist for safety reasons, and the FCC won’t support a claim that safety inspections cannot be required. Similarly, if you live in a historic district the FCC may be of no help. From FCC 96–328, paragraph 41: 41. . . .There is general public awareness of the variations in the dimensions of TVBS antennas, and commenters have not sought to define these antennas by size or shape. Based on the lack of record showing any such desire, and on the variations in the dimensions of TVBS antennas, we decline to limit the size or shape of such antennas covered by our rule. Nonetheless, we believe that the BOCA guideline regarding the permissibility of permits for installations reaching more than 12 feet over the roofline, that we believe to be a safety guideline, may apply to TVBS antennas as well as to MMDS antennas on masts.

For the purposes of convincing a town to give you an antenna-support structure permit, add together the size and shape discussion of FCC 96–328, paragraph 41, with the height discussion in FCC 98–214, paragraph 35 (see below). When the viewer must get above the trees and erect a high-gain, multi-element Yagi or log-periodic antenna, with rotator, to avoid impairment of the reception of classic TV or digital TV signals, even though such a support and antenna may be substantial in height, size, and shape, its appearance is not a valid reason for denying a permit. However, a Building Permit may still be required for safety reasons. Thus, a wise applicant would apply for a Building Permit, submitting such reasonable plans as would ordinarily be necessary for a Building Permit for other routine accessory structures, and then it would seem that the permit could not be denied (see below): From FCC 96–328, paragraph 37: 37. . . .We do not believe it will be overly burdensome to require, as is provided in the BOCA code, that antenna users obtain a permit in cases in which their antennas must extend more than twelve feet above the roofline in order to receive signals. However, we would find unenforceable any restriction that establishes specific per se height limits. Similarly, we believe that the BOCA code guideline regarding permits for setbacks is safety-based, is reasonable, and does not impose an unreasonable burden.

Selected Applicable Law 101 The position that a Building Permit should not be required by a municipality for a tall antenna-support structure will apparently fail. Unless covered by the BOCA exceptions (less than 12 feet above a roof line and so forth), the applicant must obtain a Building Permit. In this case, should the town decline to follow federal law and refuse to grant the Building Permit, the least expensive next step (though not the only possible next step) would be to petition the FCC. An application to the FCC would be relatively inexpensive but can be expected to take at least six months. (Here’s a hint: Include maps. The office that handles such an appeal loves maps.) Other possible steps—steps that would be faster (but more expensive) than an appeal to the FCC—would be to seek an injunction in Land Court, Superior Court (or whatever the local jurisdiction calls the first level of court with the power to enjoin a municipality), or a U.S. District Court. Nonetheless, an applicant wishing to take advantage of §1.4000 should not forget the impact of FCC 98–238, paragraph 35, discussed above. By effectively adopting the BOCA code even for communities that have not otherwise adopted it, the FCC permits a community to require a Building Permit but does not mandate that a community require a Building Permit. So, if the municipal zoning code is silent on the matter, an applicant can plan his installation of, for example, an 80-foot tower so that it is at least 80 feet back from the nearest lot line, and an argument can be made that, under the BOCA code and 47 CFR §1.4000, no permit is required. Further, a careful reading of paragraph 35 may permit a claim that no permit is required when the roofline is 30 feet high, the antenna is 80 feet high and the setback is 50 feet. Footnote 101 to paragraph 37 reads: “Thus, subject to the other provisions of the code, if an antenna is no closer to the lot line than its total height above the roof, no permit will be required.” From FCC 96–328, paragraph 37: 37. . . .Because we believe that the model antenna height and installation restrictions in the BOCA code are safety-related, they will be enforceable under our rule. We do not believe it will be overly burdensome to require, as is provided in the BOCA code, that antenna users obtain a permit in cases in which their antennas must extend more than twelve feet above the roofline in order to receive signals. However, we would find unenforceable any restriction that establishes specific per se height limits. Similarly, we believe that the BOCA code guideline regarding permits for setbacks is safetybased, is reasonable, and does not impose an unreasonable burden. Any such permit application should be handled expeditiously. However, the antenna size restriction for satellite antennas in the BOCA code, 24 inches, is unacceptable, as the diameter or diagonal measurement of the satellite and MMDS antennas covered by our rule is one meter.

This is a really nice paragraph. While you must request and get a Building Permit, a fixed-height restriction is unenforceable. Don’t you just love that the town must act “expeditiously”? From FCC 96–328, paragraph 40: 40. Finally, we note that there is no discussion in the record regarding a history of problems regarding local regulation of the size of TVBS antennas that would suggest the need to impose size or height limitations. While commenters indicate that restrictions on TVBS antennas exist, especially from nongovernmental authorities, (fn omitted) these restrictions generally take the form of a total prohibition on antennas rather than limits on their size or placement. The lack of record on size or height limits on TVBS antennas may stem from the fact that TVBS is an older and more familiar technology than DBS or MMDS and thus subject to less regulation. There is general public awareness of

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This paragraph sets up a wonderful scenario. Assuming that you erect a substantial TVBS Yagi, or WISP antenna, a town would be hard-pressed to subsequently argue that another, non-covered antenna a few feet below would be unprecedented in height or visibility in the neighborhood. In other words, you can erect your own height precedent! From FCC 96–328, paragraph 79: 79. If a governmental or nongovernmental authority wishes to enforce a safety restriction, the rule requires that the safety reasons for the restrictions be clearly defined in the legislative history, preamble or text of the restriction. Alternatively, the local entity may include a restriction on a list of safety restrictions related to antennas, that is made available to interested parties (including those who wish to install antennas).

(Refer to http://www.fcc.gov/Bureaus/Cable/Orders/1996_TXT/fcc96328.txt.) A wise applicant will purchase the municipality’s zoning bylaw and send a letter to the Building Inspector asking for “a list of safety restrictions related to antennas, that is made available to those who wish to install antennas.” This will fix the municipality into a position. Many municipalities will have no such list. The object is to prevent the municipality from making up the rules as the game proceeds. From FCC 98–214, paragraph 36: 36. Regarding WCA’s disagreement with our conclusion in the Report and Order that BOCA requires a permit where the height of an antenna is longer than the distance between the antenna and the lot line and WCA’s argument that instead BOCA flatly forbids the installation under such circumstances, even if WCA’s interpretation is correct, our rules would preempt the BOCA requirement as interpreted by WCA. In the Report and Order, we specifically stated that “we would find unenforceable any restriction that establishes specific per se height limits.” If a local authority created a per se bar to antennas over a certain height, the restriction would be prohibited.

(Refer to http://www.fcc.gov/Bureaus/Cable/Orders/1998/fcc98214.txt.) A maximum structure height of 30 feet (or 35 feet, or whatever) is, per se, prohibited. It would appear that no municipality could justify a maximum height in all residential areas. Therefore, any letter to the Board of Appeals or Town Counsel should cite that final sentence: “If a local authority created a per se bar to antennas over a certain height, the restriction would be prohibited.” Wonderful, eh? From FCC 98–214, paragraphs 52 and 53: 52. The situation is altogether different, however, for devices designed to receive digital signals, such as DBS antennas, digital MMDS antennas and digital television (“DTV”) antennas. Unlike analog antennas, digital antennas, even in the presence of sufficient over-the-air signal strength, will at times provide no picture or sound unless they are placed and oriented for optimal reception. Where a DBS antenna has an unobstructed, direct view of a satellite, the antenna will produce a complete picture and sound. As the antenna is moved or oriented slightly to a position where its view of the satellite

Selected Applicable Law 103 becomes less direct or partially obstructed, the antenna will continue, up to a point, to produce a complete picture and sound because digital reception devices have error correcting systems that fill in the missing data by taking into account interruptions in the digital data stream caused by the obstruction. At some point, however, as the antenna’s view becomes slightly more obstructed, the obstruction will cause the picture and sound to become fragmented because the obstruction is blocking too many pieces of digital data for the antenna’s error correcting system to correct. As the antenna is moved a negligible distance farther and its view of the satellite becomes more obstructed, the antenna will produce no picture or sound at all because the antenna can no longer receive sufficient data. This is the “cliff effect” that is the point at which there is a complete loss of picture and sound because the antenna can no longer receive sufficient data. At the cliff, the transition between a complete picture and no picture takes place almost immediately. 53. Obstructions are not the only causes of data disruption. Weather conditions such as severe rain can interfere with the data streams to such a degree that most antennas will be unable to produce a picture during some periods throughout the year. Manufacturers assume that satellite antennas will have an unobstructed view of the satellite and design them to keep these weather blackouts to a minimum while at the same time producing the smallest antenna possible. For antennas that have an obstructed view of the satellite, these weather blackouts will occur more frequently than for antennas that have an unobstructed view of the satellite because both the obstruction and the weather are blocking the data stream. For this reason, we conclude that, to receive an acceptable quality signal, a DBS antenna or other digital reception device covered by Section 207 must be installed where it has an unobstructed, direct view of the satellite or other device from which video programming service is received, if such a location exists on the viewer’s property and the property is covered by our rules.

The thoughtful applicant will take note of the FCC’s direct statement that, “The situation is altogether different, however, for devices designed to receive digital signals.” An application should be aimed at the reception of digital television signals and emphasize that the antenna must have an “unobstructed, direct view.” Thus, it must be above the trees, and, if necessary, above nearby ridges or hills that could block reception of a DT (Digital Television) station in a given direction. Consult U.S. Geological Survey (USGS) maps for elevations and determine the line-of-sight directions to DT stations by using one of the relevant TV station direction and distance websites. Try http://bsexton.addr.com/tvdb.html. For a little fun, try using the line-of-sight feature called “Path Profiler” at http://www.heywhatsthat.com/profiler.html. Thus, the applicant will: 1.

Find a network station (a network station is not required but seems strategically helpful) for desired viewing where the DMA map clearly covers the reception site but signals are not so strong as to be Class A (rabbit ears) reception. (See FCC 96–328, paragraph 20.)

2.

Preferably find a station that is a “-DT” (digital television) station, not viewable any other way (i.e., by cable TV or DBS). This is a nice touch, though not required. (See FCC 98–214, paragraphs 51 and 52.)

3.

If possible, plan an antenna-support structure installation so the support structure and antenna are no taller than the distance to the nearest property line. (See FCC 98–214, paragraph 27.)

4.

Purchase a complete copy of the town’s zoning bylaw and make a written request of the Building Inspector for “a list of safety restrictions related to antennas that is made available to those who wish to install antennas.” (Please use those exact words, as they mirror FCC 96–328, paragraph 79.)

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5.

Apply for a Building Permit in writing to “freeze” the town, preventing it from detrimentally changing the bylaw or adding illegitimate “safety” requirements before the applicant can obtain a Building Permit for the proposed antenna system.

6.

Respectfully bring the appropriate law (both 47 CFR §1.4000 and the clarifications available in the Reports and Orders) to the attention of the Building Inspector, the Board of Appeals, and Town Counsel.

7.

If the town threatens legal action, immediately file a petition with the FCC. This can be done without the help of a lawyer by following the FCC’s instructions in §1.4000. Filing with the FCC, where the town has the burden of showing that its regulation outweighs the federal interest involved, should stay local court action if the town tries to file against you locally. Your lawyer will smile when he realizes the strength of your position. Demand the grant of a Building Permit for the antenna-support structure and antenna. Be sure to get a Certificate of Completion when the project is done.

8.

Once the TV antenna-support structure is up with a TV antenna on top, the Certificate of Completion has been received, and the brouhaha has died down, it may be that no further Building Permit is required to add another antenna up to the loading capacity of the antenna-support structure.

Now for some additional tips. As an alternative to calling a station for DMA or signal-strength information, some TV stations have their own websites that will lead you to the sites previously mentioned and, in effect, provide all you need to know. Should you call the station, ask for an engineer for help in obtaining signal-coverage information. If you don’t know or wish to check up on your latitude and longitude or you would like to print out a map of your neighborhood, try http://mapsonus.com/. See the article by R. F. Gillette,W9PE, in QST (1999, December, p. 55). MapsOnUs will also help you calculate the direction and distance to your desired TV station (or repeater, or emergency management site).

6.7.2 OTARD Rule, 47 CFR §1.4000, “Latitude and Longitude the Easy Way” Subpart S—Preemption of Restrictions That “Impair” a Viewer’s Ability to Receive Television Broadcast Signals, Direct Broadcast Satellite Services, or Multichannel Multipoint Distribution Services: Sec. 1.4000 Restrictions impairing reception of television broadcast signals, direct broadcast satellite services, or multichannel multipoint distribution services. (a)(1) Any restriction, including but not limited to any state or local law or regulation, including zoning, land-use, or building regulations, or any private covenant, contract provision, lease provision, homeowners’ association rule or similar restriction, on property within the exclusive use or control of the antenna user where the user has a direct or indirect ownership or leasehold interest in the property that impairs the installation, maintenance, or use of: (i) An antenna that is: (A) Used to receive direct broadcast satellite service, including direct-to-home satellite service, or to receive or transmit fixed wireless signals via satellite, and

Selected Applicable Law 105 (B) One meter or less in diameter or is located in Alaska; (ii) An antenna that is: (A) Used to receive video programming services via multipoint distribution services, including multichannel multipoint distribution services, instructional television fixed services, and local multipoint distribution services, or to receive or transmit fixed wireless signals other than via satellite, and (B) That is one meter or less in diameter or diagonal measurement; (iii) An antenna that is used to receive television broadcast signals; or (iv) A mast supporting an antenna described in paragraphs (a)(1)(i), (a)(1)(ii), or (a)(1)(iii) of this section is prohibited to the extent it so impairs, subject to paragraph (b) of this section. (2) For purposes of this section, “fixed wireless signals” means any commercial non-broadcast communications signals transmitted via wireless technology to and/or from a fixed customer location. Fixed wireless signals do not include, among other things, AM radio, FM radio, amateur (“HAM”) radio, Citizen’s Band (CB) radio, and Digital Audio Radio Service (DARS) signals. (3) For purposes of this section, a law, regulation, or restriction impairs installation, maintenance, or use of an antenna if it: (i) Unreasonably delays or prevents installation, maintenance, or use; (ii) Unreasonably increases the cost of installation, maintenance, or use; or (iii) Precludes reception or transmission of an acceptable quality signal. (4) Any fee or cost imposed on a user by a rule, law, regulation or restriction must be reasonable in light of the cost of the equipment or services and the rule, law, regulation or restriction’s treatment of comparable devices. No civil, criminal, administrative, or other legal action of any kind shall be taken to enforce any restriction or regulation prohibited by this section except pursuant to paragraph (d) or (e) of this section. In addition, except with respect to restrictions pertaining to safety and historic preservation as described in paragraph (b) of this section, if a proceeding is initiated pursuant to paragraph (d) or (e) of this section, the entity seeking to enforce the antenna restrictions in question must suspend all enforcement efforts pending completion of review. No attorney’s fees shall be collected or assessed and no fine or other penalties shall accrue against an antenna user while a proceeding is pending to determine the validity of any restriction. If a ruling is issued adverse to a user, the user shall be granted at least a 21-day grace period in which to comply with the adverse ruling; and neither a fine nor a penalty may be collected from the user if the user complies with the adverse ruling during this grace period, unless the proponent of the restriction demonstrates, in the same proceeding which resulted in the adverse ruling, that the user’s claim in the proceeding was frivolous. (b) Any restriction otherwise prohibited by paragraph (a) of this section is permitted if: (1) It is necessary to accomplish a clearly defined, legitimate safety objective that is either stated in the text, preamble, or legislative history of the restriction or described as applying to that restriction in a document that is readily available to antenna users, and would be applied to the extent practicable in a non-discriminatory manner to other appurtenances, devices, or fixtures that are comparable in size and weight and pose a similar or greater safety risk as these antennas and to which local regulation would normally apply; or

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(2) It is necessary to preserve a prehistoric or historic district, site, building, structure or object included in, or eligible for inclusion on, the National Register of Historic Places, as set forth in the National Historic Preservation Act of 1966, as amended (16 U.S.C. 470), and imposes no greater restrictions on antennas covered by this rule than are imposed on the installation, maintenance, or use of other modern appurtenances, devices, or fixtures that are comparable in size, weight, and appearance to these antennas; and (3) It is no more burdensome to affected antenna users than is necessary to achieve the objectives described in paragraphs (b)(1) or (b)(2) of this section. (c) In the case of an antenna that is used to transmit fixed wireless signals, the provisions of this section shall apply only if a label is affixed to the antenna that: (1) Provides adequate notice regarding potential radiofrequency safety hazards, e.g., information regarding the safe minimum separation distance required between users and transceiver antennas; and (2) References the applicable FCC-adopted limits for radiofrequency exposure specified in Sec. 1.1310 of this chapter. (d) Local governments or associations may apply to the Commission for a waiver of this section under Sec. 1.3 of this chapter. Waiver requests must comply with the procedures in paragraphs (f) and (h) of this section and will be put on public notice. The Commission may grant a waiver upon a showing by the applicant of local concerns of a highly specialized or unusual nature. No petition for waiver shall be considered unless it specifies the restriction at issue. Waivers granted in accordance with this section shall not apply to restrictions amended or enacted after the waiver is granted. Any responsive pleadings must be served on all parties and filed within 30 days after release of a public notice that such petition has been filed. Any replies must be filed within 15 days thereafter. (e) Parties may petition the Commission for a declaratory ruling under Sec. 1.2 of this chapter, or a court of competent jurisdiction, to determine whether a particular restriction is permissible or prohibited under this section. Petitions to the Commission must comply with the procedures in paragraphs (f) and (h) of this section and will be put on public notice. Any responsive pleadings in a Commission proceeding must be served on all parties and filed within 30 days after release of a public notice that such petition has been filed. Any replies in a Commission proceeding must be served on all parties and filed within 15 days thereafter. (f) Copies of petitions for declaratory rulings and waivers must be served on interested parties, including parties against whom the petitioner seeks to enforce the restriction or parties whose restrictions the petitioner seeks to prohibit. A certificate of service stating on whom the petition was served must be filed with the petition. In addition, in a Commission proceeding brought by an association or a local government, constructive notice of the proceeding must be given to members of the association or to the citizens under the local government’s jurisdiction. In a court proceeding brought by an association, an association must give constructive notice of the proceeding to its members. Where constructive notice is required, the petitioner or plaintiff must file with the Commission or the court overseeing the proceeding a copy of the constructive notice with a statement explaining where the notice was placed and why such placement was reasonable. (g) In any proceeding regarding the scope or interpretation of any provision of this section, the burden of demonstrating that a particular governmental or nongovernmental restriction complies with this section and does not impair the installation, maintenance, or use of devices used for over-the-air reception of video programming services or devices used to receive or transmit fixed wireless signals shall be on the party that seeks to impose or maintain the restriction.

Selected Applicable Law 107 (h) All allegations of fact contained in petitions and related pleadings before the Commission must be supported by affidavit of a person or persons with actual knowledge thereof. An original and two copies of all petitions and pleadings should be addressed to the Secretary, Federal Communications Commission, 445 12th Street, SW, Washington, D.C. 20554. Copies of the petitions and related pleadings will be available for public inspection in the Reference Information Center, Consumer and Governmental Affairs Bureau, Federal Communications Commission, 445 12th Street, SW, Washington, D.C. 20554. Copies will be available for purchase from the Commission’s contract copy center, and the Commission decisions will be available on the Internet.

6.8 Federal Law Relating to FM Transmitters For FM broadcast stations, there are at least two arguments that a certain minimum height has a federal mandate that preempts local zoning. They are found in 47 CFR §73.211—Power and antenna height requirements, as well as 47 CFR §73.315—FM transmitter location. A comparable argument, that an FCC-mandated minimum height in 47 CFR §73.189 and §73.190 preempted a local zoning maximum height, succeeded for an AM broadcast station in Koor Communications v. City of Lebanon, 148 N.H. 618 (2002), 813 A.2d 418 (N.H. 2002) (http://www.courts.state.nh.us/supreme/opinions/2002/0212/ koor152.htm). Note that the minimum power requirements could also be used to claim preemption of a local attempt to set RF exposure levels below Office of Engineering Technology (OET)-65 levels. Notice that §73.211(b) could be used to argue that a municipality can suggest lowering the power of an FM station, or lowering the height, but, because §73.211(b) presents an FCC-mandated minimum (i.e., preempting local zoning), the municipality cannot have both.

47 CFR §73.211—Power and antenna height requirements Subpart B—FM Broadcast Stations

(a) Minimum requirements. (1) Except as provided in paragraphs (a)(3) and (b)(2) of this section, FM stations must operate with a minimum effective radiated power (ERP) as follows: (i) The minimum ERP for Class A stations is 0.1 kW (ii) The ERP for Class B1 stations must exceed 6 kW (iii) The ERP for Class B stations must exceed 25 kW (iv) The ERP for Class C3 stations must exceed 6 kW (v) The ERP for Class C2 stations must exceed 25 kW (vi) The ERP for Class C1 stations must exceed 50 kW (vii) The minimum ERP for Class C and C0 stations is 100 kW (2) Class C0 stations must have an antenna height above average terrain (HAAT) of at least 300 meters (984 feet). Class C stations must have an antenna height above average terrain (HAAT) of at least 451 meters (1480 feet).

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(3) Stations of any class except Class A may have an ERP less than that specified in paragraph (a)(1) of this section, provided that the reference distance, determined in accordance with paragraph (b)(1)(i) of this section, exceeds the distance to the class contour for the next lower class. Class A stations may have an ERP less than 100 watts provided that the reference distance, determined in accordance with paragraph (b)(1)(i) of this section, equals or exceeds 6 kilometers. (b) Maximum limits. (1) Except for stations located in Puerto Rico or the Virgin Islands, the maximum ERP in any direction, reference HAAT, and distance to the class contour for each FM station class are listed below: Station class Maximum ERP Reference HAAT in meters (ft.) Class contour distance in kilometers A 6 kW (7.8 dBk) 100 (328) 28 B1 25 kW (14.0 dBk) 100 (328) 39 B 50 kW (17.0 dBk) 150 (492) 52 C3 25 kW (14.0 dBk) 100 (328) 39 C2 50 kW (17.0 dBk) 150 (492) 52 C1 100 kW (20.0 dBk) 299 (981) 72 C0 100 kW (20.0 dBk) 450 (1476) 83 C 100 kW (20.0 dBk) 600 (1968) 92 (i) The reference distance of a station is obtained by finding the predicted distance to the 1mV/ m contour using Figure 1 of Sec. 73.333 and then rounding to the nearest kilometer. Antenna HAAT is determined using the procedure in Sec. 73.313. If the HAAT so determined is less than 30 meters (100 feet), a HAAT of 30 meters must be used when finding the predicted distance to the 1 mV/m contour. (ii) If a station’s ERP is equal to the maximum for its class, its antenna HAAT must not exceed the reference HAAT, regardless of the reference distance. For example, a Class A station operating with 6 kW ERP may have an antenna HAAT of 100 meters, but not 101 meters, even though the reference distance is 28 km in both cases. (iii) Except as provided in paragraph (b)(3) of this section, no station will be authorized in Zone I or I-A with an ERP equal to 50 kW and a HAAT exceeding 150 meters. No station will be authorized in Zone II with an ERP equal to 100 kW and a HAAT exceeding 600 meters. (2) If a station has an antenna HAAT greater than the reference HAAT for its class, its ERP must be lower than the class maximum such that the reference distance does not exceed the class contour distance. If the antenna HAAT is so great that the station’s ERP must be lower than the minimum ERP for its class (specified in paragraphs (a)(1) and(a)(3) of this section), that lower ERP will become the minimum for that station. (3) For stations located in Puerto Rico or the Virgin Islands, the maximum ERP in any direction, reference HAAT, and distance to the class contour for each FM station class are listed below: Station class Maximum ERP Reference HAAT in meters (ft.) Class contour distance in kilometers A 6 kW (7.8 dBk) 240 (787) 42 B1 25kW (14.0 dBk) 150 (492) 46 B 50kW (17.0 dBk) 472 (1549) 78

Selected Applicable Law 109 (c) Existing stations. Stations authorized prior to March 1, 1984 that do not conform to the requirements of this section may continue to operate as authorized. Stations operating with facilities in excess of those specified in paragraph (b) of this section may not increase their effective radiated powers or extend their 1 mV/m field strength contour beyond the location permitted by their present authorizations. The provisions of this section will not apply to applications to increase facilities for those stations operating with less than the minimum power specified in paragraph (a) of this section. (d) Existing Class C stations below minimum antenna HAAT. Class C stations authorized prior to January 19, 2001 that do not meet the minimum antenna HAAT specified in paragraph (a)(2) of this section for Class C stations may continue to operate as authorized subject to the reclassification procedures set forth in Note 4 to Sec. 73.3573. 47 CFR §73.315—FM transmitter location (a) The transmitter location shall be chosen so that, on the basis of the effective radiated power and antenna height above average terrain employed, a minimum field strength of 70 dB above one uV/m (dBu), or 3.16 mV/m, will be provided over the entire principal community to be served. (b) The transmitter location should be chosen to maximize coverage to the city of license while minimizing interference. This is normally accomplished by locating in the least populated area available while maintaining the provisions of paragraph (a) of this section. In general, the transmitting antenna of a station should be located in the most sparsely populated area available at the highest elevation available. The location of the antenna should be so chosen that line-of-sight can be obtained from the antenna over the principle city or cities to be served; in no event should there be a major obstruction in this path. (c) The transmitting location should be selected so that the 1 mV/m contour encompasses the urban population within the area to be served. It is recognized that topography, shape of the desired service area, and population distribution may make the choice of a transmitter location difficult. In such cases consideration may be given to the use of a directional antenna system, although it is generally preferable to choose a site where a nondirectional antenna may be employed. (d) In cases of questionable antenna locations it is desirable to conduct propagation tests to indicate the field strength expected in the principal city or cities to be served and in other areas, particularly where severe shadow problems may be expected. In considering applications proposing the use of such locations, the Commission may require site tests to be made. Such tests should include measurements made in accordance with the measurement procedures described in Sec. 73.314, and full data thereon shall be supplied to the Commission. The test transmitter should employ an antenna having a height as close as possible to the proposed antenna height, using a balloon or other support if necessary and feasible. Information concerning the authorization of site tests may be obtained from the Commission upon request. (e) Cognizance must of course be taken regarding the possible hazard of the proposed antenna structure to aviation and the proximity of the proposed site to airports and airways. Procedures and standards with respect to the Commission’s consideration of proposed antenna structures which will serve as a guide to persons intending to apply for radio station licenses are contained in Part 17 of this chapter (Construction, Marking, and Lighting of Antenna Structures). (Emphasis supplied.)

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6.9 Federal Law Relating to Broadcast Station Locations As you consider the location of an FM station, do not forget the obligations of an FM licensee to AM broadcast licensees with respect to construction near or installation on an AM broadcast tower. 47 CFR §73.1692—FM transmitter location SUBPART H—RULES APPLICABLE TO ALL BROADCAST STATIONS Where a broadcast licensee or permittee proposes to mount a broadcast antenna on an AM station tower, or where construction is proposed within 0.8 km of an AM nondirectional tower or within 3.2 km of an AM directional station, the broadcast licensee or permittee is responsible for ensuring that the construction does not adversely affect the AM station, as follows: (a) Installations on an AM nondirectional tower. During installation of the broadcast antenna and related equipment, the AM station shall determine operating power by the indirect method (see Sec. 73.51). Upon the completion of the installation, antenna impedance measurements on the AM antenna shall be made, and, prior to or simultaneously with the filing of the license application covering the broadcast station installation, an application on FCC Form 302-AM (including a tower sketch of the installation) shall be filed with the Commission for the AM station to return to direct power measurement. (b) Installations on an AM directional array. Prior to commencing construction, the broadcast permittee or licensee shall notify the AM station so that, if necessary, the AM station may determine operating power by the indirect method (see Sec. 73.51) and request special temporary authority pursuant to Sec. 73.1635 to operate with parameters at variance in order to maintain monitoring point field strengths within authorized limits. Both prior to the commencement of construction and upon completion of construction, a partial proof of performance (as defined by Sec. 73.154) shall be conducted to establish that the AM array has not been adversely affected. Prior to or simultaneously with filing of the license application to cover the broadcast station construction, the results of the partial proof of performance shall be filed with the Commission on Form 302-AM. (c) Tower erections or modifications within 0.8 km of an AM nondirectional tower. Prior to commencing the construction of tower modifications, or the erection of a new tower, within 0.8 km of an AM nondirectional tower, the broadcast permittee or licensee is required to notify the AM station so that the AM station may commence determining operating power by the indirect method (see Sec. 73.51). The broadcast licensee or permittee shall be responsible for the installation and continued maintenance of detuning apparatus necessary to prevent adverse effects on the radiation pattern of the AM station. Both prior to construction of the tower modifications and upon completion of construction, antenna impedance measurements of the AM station shall be made. In addition, sufficient field strength measurements taken at a minimum of 10 locations along each of 8 equally spaced radials, shall be made to establish that the AM radiation pattern is essentially omnidirectional. Prior or simultaneously with the filing of the application for license to cover this permit, the results of the impedance measurements and the field strength measurements shall be filed with the Commission on FCC Form 302-AM for the AM station to return to the direct method of power determination. (d) Tower erections or modifications within 3.2 km of an AM directional station. Prior to commencing construction of tower modifications, or the erection of a new tower structure, within 3.2 km of an AM directional array, the broadcast permittee or licensee shall notify the AM station so that, if necessary, the AM station may determine operating power by the indirect method

Selected Applicable Law 111 (see Sec. 73.51) and request special temporary authority pursuant to Sec. 73.1635 to operate with parameters at variance in order to maintain monitoring point field strengths within authorized limits. The broadcast licensee or permittee shall be responsible for the installation and continued maintenance of detuning apparatus necessary to prevent adverse effects upon the radiation pattern of the AM station. Both prior to the commencement of construction and upon completion of construction, a partial proof of performance (as defined by Sec. 73.154) shall be conducted to establish that the AM array has not been adversely affected. Prior to or simultaneously with filing of the license application to cover the broadcast station construction, the results of the partial proof of performance shall be filed with the Commission on Form 302-AM.

6.10 Federal Law Relating to Cellular Telephone, PCS, Paging, etc Perhaps you were hoping that the Telecommunications Act of 1996 contained something special. Perhaps you’ve even heard that it had very specific preemptions. The answer is that it has some very specific things to help the companies in personal wireless services. Don’t get too anxious. The definition of personal wireless services is very specific, and the preemption only works if you represent a covered service. Personal wireless services include all commercial mobile radio services, including personal communications services (PCS), cellular telephone, two-way mobile radio, and paging; unlicensed wireless services; and common carrier wireless exchange access services. The preemption you want to know about is found at 47 USC §332(c)(7)(C): §332. Mobile services (c) Regulatory treatment of mobile services (7) Preservation of local zoning authority (A) General authority Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities. (B) Limitations (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. (ii) A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request. (iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.

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(iv) 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. (v) Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief. (C) Definitions For purposes of this paragraph (i) the term “personal wireless services” means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services; (ii) the term “personal wireless service facilities” means facilities for the provision of personal wireless services; and (iii) the term “unlicensed wireless service” means the offering of telecommunications services using duly authorized devices which do not require individual licenses, but does not mean the provision of direct-to-home satellite services (as defined in section 303 (v) of this title).

6.11 Federal Law Relating to FAA Clearance Now and again an author gets lucky, because someone else has written what needs to be written. This is a fragment of a question/answer session with the late John Hennessee, N1KB, Regulatory Information Specialist at the Regulatory Information branch at ARRL, the national association for Amateur Radio, regarding tower restrictions near airports. Height is height, and the nature of the FCC-licensed service is irrelevant, so commercial users are bound by the same rules. I plan to buy land soon and install a tower at 100 or 125 feet. The local Code Enforcement Officer said that the local ordinances did not state any prohibition on radio amateur tower height, but he said that the local municipal airport was about 3 miles from the land I want to put the tower on . . . and that he thinks that the hill I will be putting the tower on is in the direct flight path. Where are the FCC rules on this? Can you send me a copy of the pertinent FCC rules?

John Hennessee, N1KB, replied: In November of 1995, the FCC adopted rules requiring tower owners to register with the FCC each antenna structure for which Federal Aviation Administration (FAA) notification is required. Generally, this includes all structures more than 200 feet above ground or certain towers located near or on a public use airport. The FCC has long required registration and FAA notification, but they now have specific rules that appear in Part 17 of FCC rules. FCC may assess stiff fines to tower owners who do not comply and the fines, that can range up to $10,000, appear in Section 1.80 of FCC rules. If required, all tower owners, including amateurs, must register their towers with the FCC and they are required to do so immediately. Part 17 mandates marking and lighting of non-exempt antenna

Selected Applicable Law 113 structures to help protect the safety of air navigation. A copy of Part 17 is available from the FCC Web page at http://wireless.fcc.gov/index.htm?job ⫽ rules_and_regulations. [Remember, the federal tower registration process, and local zoning ordinances, are completely separate. They should not be confused.] Most antenna structures that are higher than 200 feet above ground level or that may interfere with the flight path of a nearby airport must be cleared by the Federal Aviation Administration (FAA) and registered with the FCC. Unless specifically exempted, FAA notification and FCC registration are required: 1. For any construction or alteration of more than 200 feet in height above ground level at its site. 2. When requested by the FAA if it is determined that the antenna structure might exceed an obstruction standard of the FAA. 3. For any construction or alteration of greater height than an imaginary surface extending outward and upward at one of the following slopes that represent the ratio of distance from the longest runway to the feet in height an antenna may be: * 100 to 1 for a horizontal distance of 20,000 feet from the nearest point of the nearest runway of each Specified Airport with at least one runway longer than 3,200 feet in actual length. If the runway is longer than 1 km (3,280 feet) and the airport is within 6.1 km (3.79 miles) of your proposed installation, your antenna may be no higher than 1 meter (3.28 feet) above the airport elevation for every 100 meters (328 feet) from the nearest runway. This is a slope of 100 to 1. * 50 to 1 for a horizontal distance of 10,000 feet from the nearest point of the nearest runway of each Specified Airport with its longest runway shorter than 3,280 feet (6.1 km or 3.79 miles) in actual length. If the runway is shorter than 1 km (3,280 feet) and the airport is within 6.1 km (3.79 miles) of your proposed installation, your antenna may be no higher than 2 meters (6.56 feet) above the airport elevation for every 100 meters (328 feet) from the nearest runway. This is a slope of 50 to 1. * 25 to 1 for a horizontal distance of 5,000 feet from the nearest point of the nearest landing and takeoff area of each heliport at a Specified Airport. If the installation is within 1.5 km (4,920 feet) of a helipad, your antenna may be no higher than 4 meters (13.1 feet) above the airport elevation for every 100 meters (328 feet) from the nearest landing pad. That’s a slope of 25 to 1. Specified Airport * A public use airport listed in the Airport Directory of the current Aeronautical Information Manual or in either the Alaska or Pacific Airman’s Guide and Chart Supplement; * An airport under construction, that is the subject of a notice or proposal on file with the FAA, and except for military airports, it is clearly indicated that the airport will be available for public use; or * An airport that is operated by an armed force of the United States. Which Towers Are Exempt? The following types of antenna structures are specifically exempted from the FAA notification requirements and FCC registration requirements by Section 17.14 of FCC rules: 1. Any antenna structure that would be shielded by existing structures of a permanent and substantial character or by natural terrain or topographic features of equal or greater height, and would be located in the congested area of a city, town or settlement where it is evident beyond all reasonable doubt that the structure so shielded will not adversely affect safety in air navigation.

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Chapter 6 2. Any antenna structure of 20 feet or less in height (except one that would increase the height of another antenna structure.) 3. An antenna which is not near an airport and is less than 200 feet tall. If you are still unsure if your tower needs to be registered, you may call the FCC at 1–888 CALL FCC or contact them by e-mail at [email protected], or you may use online TOWAIR software that is available on the FCC’s website at: http://wireless2.fcc.gov/UlsApp/AsrSearch/towairSearch.jsp If your antenna is near an airport or over 200 feet tall, check this FCC Web site for additional information: http://www.fcc.gov/wtb/antenna. Owners of antenna structures required to be registered pursuant to Section 17.4 of the Commission’s rules must first file FAA Form 7460-1 and obtain a final determination of “no hazard” for the structure. The FAA form is available from the Web at: http:// forms.faa.gov/forms/faa7460-1.pdf. Tower owners must file FCC Form 854 with the Commission either manually or electronically to register the antenna structure. The FCC form is available from: http://www.fcc.gov/formpage.html. If required to register, an owner should register the antenna structure immediately. The reason for this process is to provide a measure of safety in air navigation against tall structures that could cause an accident. If you have reason to believe that the owner of a tall tower over 200 feet, or near an airport, is not carrying out his or her antenna structure registration responsibilities, you are required to (1) notify the owner; (2) notify the site management company (if applicable); and (3) notify the FCC. The FCC will provide additional instructions to the tower owner based on the specifics of the case. If the tower owner is unable to fulfill the Part 17 requirements for painting and lighting due to negligence, bankruptcy or whatever, the tenants may be required to carry out these duties if specifically asked by the FCC. Anyone who rents or is given space on tall towers should have a signed legal document addressing maintenance concerns as well as tower access.

Just to repeat, no matter the FCC-licensed service, amateur or commercial, the antenna site registration rules, the FAA/FCC marking and painting rules, and the FAA rules for antennas near airports all apply.

6.12 Federal Law Relating to RF Exposure Rather than reinvent the wheel, the FCC’s short bulletin on radiofrequency safety is reproduced here. It provides a basis to understand the situation, and a host of references. FCC Policy on Human Exposure to Radiofrequency Electromagnetic Fields The FCC is required by the National Environmental Policy Act of 1969 to evaluate the effect of emissions from FCC-regulated transmitters on the quality of the human environment. At the present time there is no federally mandated radiofrequency (RF) exposure standard. However, several non-government organizations, such as the American National Standards Institute (ANSI), the Institute of Electrical and Electronics Engineers, Inc. (IEEE), and the National Council on Radiation Protection and Measurements (NCRP) have issued recommendations for human exposure to RF electromagnetic fields. The potential hazards associated with RF electromagnetic fields are discussed in OET Bulletin No. 56, “Questions and Answers About the Biological Effects and Potential Hazards of Radiofrequency Electromagnetic Fields.”

Selected Applicable Law 115 On August 1, 1996, the Commission adopted the NCRP’s recommended Maximum Permissible Exposure limits for field strength and power density for the transmitters operating at frequencies of 300 kHz to 100 GHz. In addition, the Commission adopted the specific absorption rate (SAR) limits for devices operating within close proximity to the body as specified within the ANSI/IEEE C95.1-1992 guidelines. (See Report and Order, FCC 96–326) The Commission’s requirements are detailed in Parts 1 and 2 of the FCC’s Rules and Regulations [47 C.F.R. 1.1307(b), 1.1310, 2.1091, 2.1093]. Certain applicants are required to routinely perform an environmental evaluation with respect to determining compliance with the Commission’s exposure limits. In the event that an applicant determines the site is not within compliance, the submission of an Environmental Analysis is required. The SAR limits for portable and mobile devices became effective August 7, 1996. The Commission’s limits for field strength and power density became effective October 15, 1997 (see 2nd MO&O) for all services except the Amateur Radio Service. The new limits became effective for the Amateur Radio Service on January 1, 1998 (see First Memorandum Opinion and Order). As of September 1, 2000, all FCC licensees were required to be in compliance with the FCC’s RF exposure limits (See 47 C.F.R. 1.1307(b)(5)). The following services and devices are generally required to routinely perform an environmental evaluation. However many transmitters licensed under these service categories may be excluded from routine evaluation if they meet certain height and power thresholds (see OET Bulletin 65 for exclusion criteria). * Experimental Radio Service–Part 5 * Radio Frequency Devices–Part 15 * Multipoint Distribution Service–Part 21, Subpart K * Paging and Radiotelephone Service–Part 22, Subpart E * Cellular Radiotelephone Service–Part 22, Subpart H * Personal Communications Services–Part 24 * Satellite Communications–Part 25 * General Wireless Communications Service–Part 26 * Wireless Communications Service–Part 27 * Radio Broadcast Services–Part 73 * Experimental, Auxiliary, and Special Broadcast and Other Program Distributional Services–Part 74 * Stations in the Maritime Service–Part 80 * Private Land Mobile, Paging Operations–Part 90 * Private Land Mobile, “Covered” Specialized Mobile Radio–Part 90 * Amateur Radio Service–Part 97 * Local Multipoint Distribution Service–Part 101, Subpart L Mobile and portable devices used as follows: * Cellular Radio Service

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* Personal Communications Service * Satellite Communications Branch * General Wireless Communications Service * Wireless Communications Service * Maritime Service * “Covered” Specialized Mobile Radio Service * Unlicensed PCS and Millimeter Wave Devices The Commission issued a Second Memorandum Opinion and Order on August 25, 1997, to address petitions regarding the adoption of new exposure limits. OET has revised OST Bulletin No. 65, to provide guidance on acceptable methods of determining compliance with the Commission’s new exposure limits. The revised bulletin, OET Bulletin 65, Evaluating Compliance With FCC Guidelines for Human Exposure to Radiofrequency Electromagnetic Fields, was issued simultaneously with the release of the Second MO&O. http://www.fcc.gov/oet/rfsafety/background.html

The best place to begin your exploration of the wealth of FCC information on this topic is at http:// www.fcc.gov/oet/rfsafety/Welcome.html. There are other FCC information sheets on this subject as well, including: http://www.fcc.gov/cgb/consumerfacts/rfexposure.html http://www.fcc.gov/oet/rfsafety/cellpcs.html FAQ’s may be found at: http://www.fcc.gov/cgb/cellular.html (contains answers to the most frequently asked questions received by the Commission concerning cellular telephones) http://www.fcc.gov/oet/rfsafety/rf-faqs.html and its update http://www.fcc.gov/oet/rfsafety/rfupdate.html (contains answers to the most frequently asked questions received by the Commission concerning RF fields and their application) Also, see OET Bulletin 56, at http://www.fcc.gov/oet/info/documents/bulletins/Welcome.html#56. The primary source is OET Bulletin 65, known as OET-65, which can be found at http://www.fcc.gov/oet/ info/documents/bulletins/Welcome.html#65. Fortunately, if you are any kind of serious engineer, you can follow the instructions in OET-65 and evaluate your own proposal in light of your circumstances, as the rules vary by frequency. Rather than repeat what is so ably prepared and readily found on FCC websites, the space available in this book is best spent examining less well known issues, principally having to do with local attempts to regulate RF exposure, a field that, despite widespread belief, is not completely preempted by the FCC. Yet?

Selected Applicable Law 117

6.13 Tort Law Relating to RF Exposure Attempting to help you obtain the necessary permits, there are many tempting tales to be told that must be ignored because they are simply outside the scope of this book. Nonetheless, the curious will want to read about an attempt by highly skilled plaintiff’s personal injury lawyers to prove that cell phones caused a case of cancer.

6.13.1 Newman v. Motorola Claiming that his use of a wireless handheld telephone manufactured by Motorola caused his brain cancer, Dr. Christopher Newman and his wife filed a multicount complaint against numerous defendants in Baltimore City Circuit Court. That was just the beginning. The first Court decision was Newman v. Motorola, Inc., 125 F.Supp.2d 717 (D. Md. 2000), denying a motion to remand to state court (http://www.mdd.uscourts.gov/Opinions/Opinions/newman1200. pdf; see filename newman1200.pdf on the CD). Subsequent District Court rulings appear at Newman v. Motorola, USCA 4th, 2003, found at Newman v. Motorola, Inc., 218 F. Supp. 2d 769 (D. Md. 2002), http://www.mdd.uscourts.gov/Opinions/Opinions/newman0902.pdf (Daubert Ruling) (see filename newman0902.pdf on the CD), and http://www.mdd.uscourts.gov/Opinions/Opinions/ ChrisNewman0902.pdf (Memorandum and Order) (see filename ChrisNewman0902.pdf on the CD). At this point, with a record of no wins and three losses, the Plaintiff appealed to the U.S. Circuit Court of Appeals. That unpublished opinion is available at http://pacer.ca4.uscourts.gov/opinion.pdf/022424 .U.pdf (see filename Unpublished Newman Ruling.pdf on the CD). Newman lost again. The decisions are fascinating.

6.14 State Law Relating to RF Exposure There are two intriguing cases, well litigated, that relate to permitting.

6.14.1 WIZN-FM, Burlington, VT Burlington Broadcasters, owner of WIZN-FM, fought off claims that the municipality might regulate RFI; see Freeman v. Burlington Broadcasters, 204 F. 3d 311 (2d Cir. 2000), cert. denied, 531 U.S. 917 (2000), http://www.fcc.gov/ogc/documents/opinions/2000/97-9141.doc. Their opponents thereafter launched a claim that, by virtue of the RF emitted into the atmosphere, WIZN-FM was creating “air pollution.” WIZN’s final brief, described as “Supplemental Findings of Fact” (SFOF), may be found at http:// www.antennazoning.com/docs/wizn-supplemental-findings.doc and on the CD as filename wiznsupplemental-findings.doc. The cover letter and table of contents for the SFOF may be found at http://www.antennazoning.com/main/page_commercial_legal_library.html and on the CD as filename wizn-table-of-contents.doc and wizn-sfof-cover.doc.

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A 9–0 decision from the Vermont Environmental Board found for WIZN. (Ask yourself what type of person volunteers, in Vermont, to serve on an Environmental Board—would they be property-rights conservatives?) Readers are urged to read the cover letter, table of contents, and proposed Supplemental Findings of Fact submitted by Burlington Broadcasters found at http://www.antennazoning.com/main/page_ commercial_legal_library.html. The final decision of the Vermont Environmental Board may also be found at that page, where you can download the decision and the permit.

6.14.2 KRKO-AM, Seattle, WA At press time, this battle continues, but KRKO-AM has received an FCC decision known as a Finding of No Significant Impact (FONSI); see http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-081272A1.pdf. This decision will inform the reader well about RF exposure, as well as environmental protection issues. On the other hand, a local decision applied “The Precautionary Principle,” and the matter had not come to rest at press time. Nonetheless, the decision is worth reading; see www .co.snohomish.wa.us/documents/Departments/Council/Agendas/07109195ExaminerDecision.pdf.

6.15 Federal Law Relating to Environmental Protection This is no fun. As there are so many NIMBYs who will use the National Environmental Policy Act (NEPA) statute against you, there is really no substitute for reading the original yourself to determine what applies. It can be found on the CD as filename CFR 47 Vol 1.pdf; the relevant text begins on page 326 with the heading “Section 1.1301” and ends at the conclusion of Section 1.1319 on page 344. If you face major opposition, the truth is that you will probably be forced to employ all sorts of experts, such as a historian, a biologist, and so forth. Get over it and get on with it. There are firms that specialize in providing the necessary documentation and will walk you through it. Subpart I—Procedures Implementing the National Environmental Policy Act of 1969 Source: 51 FR 15000, Apr. 22, 1986, unless otherwise noted SEC. 1.1301 BASIS AND PURPOSE The provisions of this subpart implement Subchapter I of the National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4321–4335. Sec. 1.1302 Cross-reference; Regulations of the Council on Environmental Quality. A further explanation regarding implementation of the National Environmental Policy Act is provided by the regulations issued by the Council on Environmental Quality, 40 CFR 1500–1508.28. SEC. 1.1303 SCOPE The provisions of this subpart shall apply to all Commission actions that may or will have a significant impact on the quality of the human environment. To the extent that other provisions of the Commission’s rules and regulations are inconsistent with the subpart, the provisions of this subpart shall govern.

Selected Applicable Law 119 SEC. 1.1304 INFORMATION AND ASSISTANCE For general information and assistance concerning the provisions of this subpart, the Office of General Counsel may be contacted, (202) 632-6990. For more specific information, the Bureau responsible for processing a specific application should be contacted. SEC. 1.1305 ACTIONS WHICH NORMALLY WILL HAVE A SIGNIFICANT IMPACT UPON THE ENVIRONMENT, FOR WHICH ENVIRONMENTAL IMPACT STATEMENTS MUST BE PREPARED Any Commission action deemed to have a significant effect upon the quality of the human environment requires the preparation of a Draft Environmental Impact Statement (DEIS) and Final Environmental Impact Statement (FEIS) (collectively referred to as EISs) (see Secs. 1.1314, 1.1315 and 1.1317). The Commission has reviewed representative actions and has found no common pattern which would enable it to specify actions that will thus automatically require EISs. Note: Our current application forms refer applicants to Sec. 1.1305 to determine if their proposals are such that the submission of environmental information is required (see Sec. 1.1311). Until the application forms are revised to reflect our new environmental rules, applicants should refer to Sec. 1.1307. Section 1.1307 now delineates those actions for which applicants must submit environmental information. SEC. 1.1306 ACTIONS WHICH ARE CATEGORICALLY EXCLUDED FROM ENVIRONMENTAL PROCESSING (a) Except as provided in Sec. 1.1307(c) and (d), Commission actions not covered by Sec. 1.1307(a) and (b) are deemed individually and cumulatively to have no significant effect on the quality of the human environment and are categorically excluded from environmental processing. (b) Specifically, any Commission action with respect to any new application, or minor or major modifications of existing or authorized facilities or equipment, will be categorically excluded, provided such proposals do not: (1) Involve a site location specified under Sec. 1.1307(a) (1)–(7), or (2) Involve high intensity lighting under Sec. 1.1307(a)(8). (3) Result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in Sec. 1.1307(b). Note 1: The provisions of Sec. 1.1307(a) of this part requiring the preparation of EAs do not encompass the mounting of antenna(s) on an existing building or antenna tower unless Sec. 1.1307(a)(4) of this part is applicable. Such antennas are subject to Sec. 1.1307(b) of this part and require EAs if their construction would result in human exposure to radiofrequency radiation in excess of the applicable health and safety guidelines cited in Sec. 1.1307(b) of this part. The provisions of Sec. 1.1307(a) and (b) of this part do not encompass the installation of aerial wire or cable over existing aerial corridors of prior or permitted use or the underground installation of wire or cable along existing underground corridors of prior or permitted use, established by the applicant or others. The use of existing buildings, towers, or corridors is an environmentally desirable alternative to the construction of new facilities and is encouraged. The provisions of Sec. 1.1307(a) and (b) of this part do not encompass the construction of new submarine cable systems.

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Note 2: The specific height of an antenna tower or supporting structure, as well as the specific diameter of a satellite earth station, in and of itself, will not be deemed sufficient to warrant environmental processing; see Secs. 1.1307 and 1.1308. Note 3: The construction of an antenna tower or supporting structure in an established “antenna farm” (i.e., an area in which similar antenna towers are clustered, whether or not such area has been officially designated as an antenna farm) will be categorically excluded unless one or more of the antennas to be mounted on the tower or structure are subject to the provisions of Sec. 1.1307(b) and the additional radiofrequency radiation from the antenna(s) on the new tower or structure would cause human exposure in excess of the applicable health and safety guidelines cited in Sec. 1.1307(b). SEC. 1.1307 ACTIONS THAT MAY HAVE A SIGNIFICANT ENVIRONMENTAL EFFECT, FOR WHICH ENVIRONMENTAL ASSESSMENTS (EAS) MUST BE PREPARED (a) Commission actions with respect to the following types of facilities may significantly affect the environment and thus require the preparation of EAs by the applicant (see Secs. 1.1308 and 1.1311) and may require further Commission environmental processing (see Secs. 1.1314, 1.1315 and 1.1317): (1) Facilities that are to be located in an officially designated wilderness area. (2) Facilities that are to be located in an officially designated wildlife preserve. (3) Facilities that: (i) May affect listed threatened or endangered species or designated critical habitats; or (ii) are likely to jeopardize the continued existence of any proposed endangered or threatened species or likely to result in the destruction or adverse modification of proposed critical habitats, as determined by the Secretary of the Interior pursuant to the Endangered Species Act of 1973. Note: The list of endangered and threatened species is contained in 50 CFR 17.11, 17.22, 222.23(a), and 227.4. The list of designated critical habitats is contained in 50 CFR 17.95, 17.96, and Part 226. To ascertain the status of proposed species and habitats, inquiries may be directed to the Regional Director of the Fish and Wildlife Service, Department of the Interior. (4) Facilities that may affect districts, sites, buildings, structures or objects, significant in American history, architecture, archeology, engineering or culture, that are listed, or are eligible for listing, in the National Register of Historic Places. (See 16 U.S.C. 470w(5); 36 CFR 60 and 800.) Note: The National Register is updated and republished in the Federal Register each year in February. To ascertain whether a proposal affects a historical property of national significance, inquiries also may be made to the appropriate State Historic Preservation Officer; see 16 U.S.C. 470a(b); 36 CFR Parts 63 and 800. (5) Facilities that may affect Indian religious sites. (6) Facilities to be located in a flood plain. (See Executive Order 11988.) (7) Facilities whose construction will involve significant change in surface features (e.g., wetland fill, deforestation or water diversion). (In the case of wetlands on Federal property, see Executive Order 11990.) (8) Antenna towers and/or supporting structures that are to be equipped with high intensity white lights which are to be located in residential neighborhoods, as defined by the applicable zoning law.

Selected Applicable Law 121 (b) In addition to the actions listed in paragraph (a) of this section, Commission actions granting construction permits, licenses to transmit or renewals thereof, equipment authorizations or modifications in existing facilities, require the preparation of an Environmental Assessment (EA) if the particular facility, operation or transmitter would cause human exposure to levels of radiofrequency radiation in excess of the limits in Secs. 1.1310 and 2.1093 of this chapter. Applications to the Commission for construction permits, licenses to transmit or renewals thereof, equipment authorizations or modifications in existing facilities must contain a statement confirming compliance with the limits unless the facility, operation, or transmitter is categorically excluded, as discussed below. Technical information showing the basis for this statement must be submitted to the Commission upon request. (1) The appropriate exposure limits in Secs. 1.1310 and 2.1093 of this chapter are generally applicable to all facilities, operations and transmitters regulated by the Commission. However, a determination of compliance with the exposure limits in Sec. 1.1310 or Sec. 2.1093 of this chapter (routine environmental evaluation), and preparation of an EA if the limits are exceeded, is necessary only for facilities, operations and transmitters that fall into the categories listed in Table 1, or those specified in paragraph (b)(2) of this section. All other facilities, operations and transmitters are categorically excluded from making such studies or preparing an EA, except as indicated in paragraphs (c) and (d) of this section. For purposes of Table 1, buildingmounted antennas means antennas mounted in or on a building structure that is occupied as a workplace or residence. The term power in column 2 of Table 1 refers to total operating power of the transmitting operation in question in terms of effective radiated power (ERP), equivalent isotropically radiated power (EIRP), or peak envelope power (PEP), as defined in Sec. 2.1 of this chapter. For the case of the Cellular Radiotelephone Service, Subpart H of Part 22 of this chapter; the Personal Communications Service, Part 24 of this chapter; and the Specialized Mobile Radio Service, Part 90 of this chapter, the phrase total power of all channels in column 2 of Table 1 means the sum of the ERP or EIRP of all co-located simultaneously operating transmitters owned and operated by a single licensee. When applying the criteria of Table 1, radiation in all directions should be considered. For the case of transmitting facilities using sectorized transmitting antennas, applicants and licensees should apply the criteria to all transmitting channels in a given sector, noting that for a highly directional antenna there is relatively little contribution to ERP or EIRP summation for other directions. (2) Mobile and portable transmitting devices that operate in the Cellular Radiotelephone Service, the Personal Communications Services (PCS), the Satellite Communications Services, the General Wireless Communications Service, the Wireless Communications Service, the Maritime Services (ship earth stations only) and the Specialized Mobile Radio Service authorized under Subpart H of Parts 22, 24, 25, 26, 27, 80, and 90 of this chapter are subject to routine environmental evaluation for RF exposure prior to equipment authorization or use, as specified in Secs. 2.1091 and 2.1093 of this chapter. Unlicensed PCS, unlicensed NII and millimeter wave devices are also subject to routine environmental evaluation for RF exposure prior to equipment authorization or use, as specified in Secs. 15.253(f), 15.255(g), and 15.319(i) and 15.407(f) of this chapter. All other mobile, portable, and unlicensed transmitting devices are categorically excluded from routine environmental evaluation for RF exposure under Secs. 2.1091 and 2.1093 of this chapter except as specified in paragraphs (c) and (d) of this section. (3) In general, when the guidelines specified in Sec. 1.1310 are exceeded in an accessible area due to the emissions from multiple fixed transmitters, actions necessary to bring the area into compliance are the shared responsibility of all licensees whose transmitters produce, at the area

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in question, power density levels that exceed 5% of the power density exposure limit applicable to their particular transmitter or field strength levels that, when squared, exceed 5% of the square of the electric or magnetic field strength limit applicable to their particular transmitter. Owners of transmitter sites are expected to allow applicants and licensees to take reasonable steps to comply with the requirements contained in Sec. 1.1307(b) and, where feasible, should encourage co-location of transmitters and common solutions for controlling access to areas where the RF exposure limits contained in Sec. 1.1310 might be exceeded. (i) Applicants for proposed (not otherwise excluded) transmitters, facilities or modifications that would cause non-compliance with the limits specified in Sec. 1.1310 at an accessible area previously in compliance must submit an EA if emissions from the applicant’s transmitter or facility would result, at the area in question, in a power density that exceeds 5% of the power density exposure limit applicable to that transmitter or facility or in a field strength that, when squared, exceeds 5% of the square of the electric or magnetic field strength limit applicable to that transmitter or facility. (ii) Renewal applicants whose (not otherwise excluded) transmitters or facilities contribute to the field strength or power density at an accessible area not in compliance with the limits specified in Sec. 1.1310 must submit an EA if emissions from the applicant’s transmitter or facility results, at the area in question, in a power density that exceeds 5% of the power density exposure limit applicable to that transmitter or facility or in a field strength that, when squared, exceeds 5% of the square of the electric or magnetic field strength limit applicable to that transmitter of facility. (4) Transition Provisions. Applications filed with the Commission prior to October 15, 1997 (or January 1, 1998, for the Amateur Radio Service only), for construction permits, licenses to transmit or renewals thereof, modifications in existing facilities or other authorizations or renewals thereof require the preparation of an Environmental Assessment if the particular facility, operation or transmitter would cause human exposure to levels of radiofrequency radiation that are in excess of the requirements contained in paragraphs (b)(4)(i) through (b)(4)(iii) of this section. In accordance with Sec. 1.1312, if no new application or Commission action is required for a licensee to construct a new facility or physically modify an existing facility, e.g., geographic area licensees, and construction begins on or after October 15, 1997, the licensee will be required to prepare an Environmental Assessment if construction or modification of the facility would not comply with the provisions of paragraph (b)(1) of this section. These transition provisions do not apply to applications for equipment authorization or use for mobile, portable and unlicensed devices as specified in paragraph (b)(2) of this section. (i) For facilities and operations licensed or authorized under Parts 5, 21 (Subpart K), 25, 73, 74 (Subparts A, G, I, and L), and 80 of this chapter, the “Radio Frequency Protection Guides’’ recommended in “American National Standard Safety Levels with Respect to Human Exposure to Radio Frequency Electromagnetic Fields, 300 kHz to 100 GHz” (ANSI C95.1-1982), issued by the American National Standards Institute (ANSI) and copyright 1982 by the Institute of Electrical and Electronics Engineers, Inc., New York, NY, shall apply. With respect to Subpart K of Part 21 and Subpart I of Part 74 of this chapter, these requirements apply only to multipoint distribution service and instructional television fixed service stations transmitting with an equivalent isotropically radiated power (EIRP) in excess of 200 watts. With respect to Subpart L of Part 74 of this chapter, these requirements apply only to FM booster and translator stations transmitting with an effective radiated power (ERP) in excess of 100 watts. With respect to Part 80 of this chapter, these requirements apply only to ship earth stations.

Selected Applicable Law 123 (ii) For facilities and operations licensed or authorized under Part 24 of this chapter, licensees and manufacturers are required to ensure that their facilities and equipment comply with IEEE C95.1-1991 (ANSI/IEEE C95.1-1992), “Safety Levels With Respect to Human Exposure to Radio Frequency Electromagnetic Fields, 3 kHz to 300 GHz.” Measurement methods are specified in IEEE C95.3-1991, “Recommended Practice for the Measurement of Potentially Hazardous Electromagnetic Fields—RF and Microwave.” Copies of these standards are available from IEEE Standards Board, 445 Hoes Lane, P.O. Box 1331, Piscataway, NJ 08855-1331. Telephone: 1-800-678-4333. The limits for both “controlled”‘ and “uncontrolled” environments, as defined by IEEE C95.1-1991, will apply to all PCS base and mobile stations, as appropriate. (iii) Applications for all other types of facilities and operations are categorically excluded from routine RF radiation evaluation except as provided in paragraphs (c) and (d) of this section. (5) Existing transmitting facilities, devices and operations: All existing transmitting facilities, operations and devices regulated by the Commission must be in compliance with the requirements of paragraphs (b)(1) through (b)(3) of this section by September 1, 2000, or, if not in compliance, file an Environmental Assessment as specified in Sec. 1.1311. (c) If an interested person alleges that a particular action, otherwise categorically excluded, will have a significant environmental effect, the person shall submit to the Bureau responsible for processing that action a written petition setting forth in detail the reasons justifying or circumstances necessitating environmental consideration in the decision-making process (see Sec. 1.1313). The Bureau shall review the petition and consider the environmental concerns that have been raised. If the Bureau determines that the action may have a significant environmental impact, the Bureau will require the applicant to prepare an EA (see Secs. 1.1308 and 1.1311), which will serve as the basis for the determination to proceed with or terminate environmental processing. (d) If the Bureau responsible for processing a particular action, otherwise categorically excluded, determines that the proposal may have a significant environmental impact, the Bureau, on its own motion, shall require the applicant to submit an EA. The Bureau will review and consider the EA as in paragraph (c) of this section. (e) 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 regulations contained in this chapter concerning the environmental effects of such emissions. For purposes of this paragraph: (1) The term personal wireless service means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services; (2) The term personal wireless service facilities means facilities for the provision of personal wireless services; (3) The term unlicensed wireless services means the offering of telecommunications services using duly authorized devices which do not require individual licenses, but does not mean the provision of direct-to-home satellite services; and (4) The term direct-to-home satellite services means the distribution or broadcasting of programming or services by satellite directly to the subscriber’s premises without the use of ground receiving or distribution equipment, except at the subscriber’s premises or in the uplink process to the satellite.

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Effective Date Note: At 63 FR 65099, Nov. 25, 1998, Sec. 1.1307, Table 1 was amended. This section contains information collection and record-keeping requirements and will not become effective until approval has been given by the Office of Management and Budget. SEC. 1.1308 CONSIDERATION OF ENVIRONMENTAL ASSESSMENTS (EAS); FINDINGS OF NO SIGNIFICANT IMPACT (a) Applicants shall prepare EAs for actions that may have a significant environmental impact (see Sec. 1.1307). An EA is described in detail in Sec. 1.1311 of this part of the Commission rules. (b) The EA is a document which shall explain the environmental consequences of the proposal and set forth sufficient analysis for the Bureau or the Commission to reach a determination that the proposal will or will not have a significant environmental effect. To assist in making that determination, the Bureau or the Commission may request further information from the applicant, interested persons, and agencies and authorities which have jurisdiction by law or which have relevant expertise. Note: With respect to actions specified under Sec. 1.1307 (a)(3) and (a)(4), the Commission shall solicit and consider the comments of the Department of Interior, and the State Historic Preservation Officer and the Advisory Council on Historic Preservation, respectively, in accordance with their established procedures. See Interagency Cooperation—Endangered Species Act of 1973, as amended, 50 CFR Part 402; Protection of Historic and Cultural Properties, 36 CFR Part 800. In addition, when an action interferes with or adversely affects an American Indian tribe’s religious site, the Commission shall solicit the views of that American Indian tribe. See Sec. 1.1307(a)(5). (c) If the Bureau or the Commission determines, based on an independent review of the EA and any applicable mandatory consultation requirements imposed upon Federal agencies (see note above), that the proposal will have a significant environmental impact upon the quality of the human environment, it will so inform the applicant. The applicant will then have an opportunity to amend its application so as to reduce, minimize, or eliminate environmental problems. See Sec. 1.1309. If the environmental problem is not eliminated, the Bureau will publish in the Federal Register a Notice of Intent (see Sec. 1.1314) that EISs will be prepared (see Secs. 1.1315 and 1.1317), or (d) If the Bureau or Commission determines, based on an independent review of the EA, and any mandatory consultation requirements imposed upon Federal agencies (see the note to paragraph (b) of this section), that the proposal would not have a significant impact, it will make a finding of no significant impact. Thereafter, the application will be processed without further documentation of environmental effect. Pursuant to CEQ regulations, see 40 CFR 1501.4 and 1501.6, the applicant must provide the community notice of the Commission’s finding of no significant impact. [51 FR 15000, Apr. 22, 1986; 51 FR 18889, May 23, 1986, as amended at 53 FR 28394, July 28, 1988] SEC. 1.1309 APPLICATION AMENDMENTS Applicants are permitted to amend their applications to reduce, minimize or eliminate potential environmental problems. As a routine matter, an applicant will be permitted to amend its application within thirty (30) days after the Commission or the Bureau informs the applicant that the proposal will have a significant impact upon the quality of the human environment (see Sec. 1.1308(c)). The period of thirty (30) days may be extended upon a showing of good cause.

Selected Applicable Law 125 SEC. 1.1310 RADIOFREQUENCY RADIATION EXPOSURE LIMITS The criteria listed in Table 1 shall be used to evaluate the environmental impact of human exposure to radiofrequency (RF) radiation as specified in Sec. 1.1307(b), except in the case of portable devices which shall be evaluated according to the provisions of Sec. 2.1093 of this chapter. Further information on evaluating compliance with these limits can be found in the FCC’s OST/OET Bulletin Number 65, “Evaluating Compliance with FCC-Specified Guidelines for Human Exposure to Radiofrequency Radiation.” Note to Introductory Paragraph: These limits are generally based on recommended exposure guidelines published by the National Council on Radiation Protection and Measurements (NCRP) in “Biological Effects and Exposure Criteria for Radiofrequency Electromagnetic Fields,” NCRP Report No. 86, Sections 17.4.1, 17.4.1.1, 17.4.2, and 17.4.3. Copyright NCRP, 1986, Bethesda, MD 20814. In the frequency range from 100 MHz to 1500 MHz, exposure limits for field strength and power density are also generally based on guidelines recommended by the American National Standards Institute (ANSI) in Section 4.1 of “IEEE Standard for Safety Levels with Respect to Human Exposure to Radio Frequency Electromagnetic Fields, 3 kHz to 300 GHz,” ANSI/IEEE C95.1-1992, Copyright 1992 by the Institute of Electrical and Electronics Engineers, Inc., New York, NY 10017. [61 FR 41016, Aug. 7, 1996] SEC. 1.1311 ENVIRONMENTAL INFORMATION TO BE INCLUDED IN THE ENVIRONMENTAL ASSESSMENT (EA) (a) The applicant shall submit an EA with each application that is subject to environmental processing (see Sec. 1.1307). The EA shall contain the following information: (1) For antenna towers and satellite earth stations, a description of the facilities as well as supporting structures and appurtenances, and a description of the site as well as the surrounding area and uses. If high intensity white lighting is proposed or utilized within a residential area, the EA must also address the impact of this lighting upon the residents. (2) A statement as to the zoning classification of the site, and communications with, or proceedings before and determinations (if any) made by zoning, planning, environmental or other local, state or Federal authorities on matters relating to environmental effect. (3) A statement as to whether construction of the facilities has been a source of controversy on environmental grounds in the local community. (4) A discussion of environmental and other considerations which led to the selection of the particular site and, if relevant, the particular facility; the nature and extent of any unavoidable adverse environmental effects, and any alternative sites or facilities which have been or might reasonably be considered. (5) Any other information that may be requested by the Bureau or Commission. (6) If endangered or threatened species or their critical habitats may be affected, the applicant’s analysis must utilize the best scientific and commercial data available, see 50 CFR 402.14(c). (b) The information submitted in the EA shall be factual (not argumentative or conclusory) and concise with sufficient detail to explain the environmental consequences and to enable the Commission or Bureau, after an independent review of the EA, to reach a determination

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concerning the proposal’s environmental impact, if any. The EA shall deal specifically with any feature of the site which has special environmental significance (e.g., wilderness areas, wildlife preserves, natural migration paths for birds and other wildlife, and sites of historic, architectural, or archeological value). In the case of historically significant sites, it shall specify the effect of the facilities on any district, site, building, structure or object listed, or eligible for listing, in the National Register of Historic Places. It shall also detail any substantial change in the character of the land utilized (e.g., deforestation, water diversion, wetland fill, or other extensive change of surface features). In the case of wilderness areas, wildlife preserves, or other like areas, the statement shall discuss the effect of any continuing pattern of human intrusion into the area (e.g., necessitated by the operation and maintenance of the facilities). (c) The EA shall also be accompanied with evidence of site approval which has been obtained from local or Federal land use authorities. (d) To the extent that such information is submitted in another part of the application, it need not be duplicated in the EA, but adequate cross-reference to such information shall be supplied. (e) An EA need not be submitted to the Commission if another agency of the Federal Government has assumed responsibility for determining whether of the facilities in question will have a significant effect on the quality of the human environment and, if it will, for invoking the environmental impact statement process. [51 FR 15000, Apr. 22, 1986, as amended at 51 FR 18889, May 23, 1986; 53 FR 28394, July 28, 1988] SEC. 1.1312 FACILITIES FOR WHICH NO PRE-CONSTRUCTION AUTHORIZATION IS REQUIRED (a) In the case of facilities for which no Commission authorization prior to construction is required by the Commission’s rules and regulations the licensee or applicant shall initially ascertain whether the proposed facility may have a significant environmental impact as defined in Sec. 1.1307 of this part or is categorically excluded from environmental processing under Sec. 1.1306 of this part. (b) If a facility covered by paragraph (a) of this section may have a significant environmental impact, the information required by Sec. 1.1311 of this part shall be submitted by the licensee or applicant and ruled on by the Commission, and environmental processing (if invoked) shall be completed, see Sec. 1.1308 of this part, prior to the initiation of construction of the facility. (c) If a facility covered by paragraph (a) of this section is categorically excluded from environmental processing, the licensee or applicant may proceed with construction and operation of the facility in accordance with the applicable licensing rules and procedures. (d) If, following the initiation of construction under this section, the licensee or applicant discovers that the proposed facility may have a significant environmental effect, it shall immediately cease construction which may have that effect, and submit the information required by Sec. 1.1311 of this part. The Commission shall rule on that submission and complete further environmental processing (if invoked), see Sec. 1.1308 of this part, before such construction is resumed.

Selected Applicable Law 127 (e) Paragraphs (a) through (d) of this section shall not apply to the construction of mobile stations. [55 FR 20396, May 16, 1990, as amended at 56 FR 13414, Apr. 2, 1991] SEC. 1.1313 OBJECTIONS (a) In the case of an application to which section 309(b) of the Communications Act applies, objections based on environmental considerations shall be filed as petitions to deny. (b) Informal objections which are based on environmental considerations must be filed prior to grant of the construction permit, or prior to authorization for facilities that do not require construction permits, or pursuant to the applicable rules governing services subject to lotteries. SEC. 1.1314 ENVIRONMENTAL IMPACT STATEMENTS (EISS) (a) Draft Environmental Impact Statements (DEISs) (Sec. 1.1315) and Final Environmental Impact Statements (FEISs) (referred to collectively as EISs) (Sec. 1.1317) shall be prepared by the Bureau responsible for processing the proposal when the Commission’s or the Bureau’s analysis of the EA (Sec. 1.1308) indicates that the proposal will have a significant effect upon the environment and the matter has not been resolved by an amendment. (b) As soon as practically feasible, the Bureau will publish in the Federal Register a Notice of Intent to prepare EISs. The Notice shall briefly identify the proposal, concisely describe the environmental issues and concerns presented by the subject application, and generally invite participation from affected or involved agencies, authorities and other interested persons. (c) The EISs shall not address non-environmental considerations. To safeguard against repetitive and unnecessarily lengthy documents, the Statements, where feasible, shall incorporate by reference material set forth in previous documents, with only a brief summary of its content. In preparing the EISs, the Bureau will identify and address the significant environmental issues and eliminate the insignificant issues from analysis. (d) To assist in the preparation of the EISs, the Bureau may request further information from the applicant, interested persons and agencies and authorities, which have jurisdiction by law or which have relevant expertise. The Bureau may direct that technical studies be made by the applicant and that the applicant obtain expert opinion concerning the potential environmental problems and costs associated with the proposed action, as well as comparative analyses of alternatives. The Bureau may also consult experts in an effort to identify measures that could be taken to minimize the adverse effects and alternatives to the proposed facilities that are not, or are less, objectionable. The Bureau may also direct that objections be raised with appropriate local, state or Federal land use agencies or authorities (if their views have not been previously sought). (e) The Bureau responsible for processing the particular application and, thus, preparing the EISs shall draft supplements to Statements where significant new circumstances occur or information arises relevant to environmental concerns and bearing upon the application. (f) The Application, the EA, the DEIS, and the FEIS and all related documents, including the comments filed by the public and any agency, shall be part of the administrative record and will be routinely available for public inspection. (g) If EISs are to be prepared, the applicant must provide the community with notice of the availability of environmental documents and the scheduling of any Commission hearings in that action.

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(h) The timing of agency action with respect to applications subject to EISs is set forth in 40 CFR 1506.10. No decision shall be made until ninety (90) days after the Notice of Availability of the Draft Environmental Impact Statement is published in the Federal Register, and thirty (30) days after the Notice of Availability of the Final Environmental Impact Statement is published in the Federal Register, which time period may run concurrently, See 40 CFR 1506.10(c); see also Secs. 1.1315(b) and 1.1317(b). (i) Guidance concerning preparation of the Draft and Final Environmental Statements is set out in 40 CFR Part 1502. [51 FR 15000, Apr. 22, 1986, as amended at 53 FR 28394, July 28, 1988] SEC. 1.1315 THE DRAFT ENVIRONMENTAL IMPACT STATEMENT (DEIS); COMMENTS (a) The DEIS shall include: (1) A concise description of the proposal, the nature of the area affected, its uses, and any specific feature of the area that has special environmental significance; (2) An analysis of the proposal, and reasonable alternatives exploring the important consequent advantages and/or disadvantages of the action and indicating the direct and indirect effects and their significance in terms of the short and long-term uses of the human environment. (b) When a DEIS and supplements, if any, are prepared, the Commission shall send five copies of the Statement, or a summary, to the Office of Federal Activities, Environmental Protection Agency. Additional copies, or summaries, will be sent to the appropriate regional office of the Environmental Protection Agency. Public Notice of the availability of the DEIS will be published in the Federal Register by the Environmental Protection Agency. (c) When copies or summaries of the DEIS are sent to the Environmental Protection Agency, the copies or summaries will be mailed with a request for comment to Federal agencies having jurisdiction by law or special expertise, to the Council on Environmental Quality, to the applicant, to individuals, groups and state and local agencies known to have an interest in the environmental consequences of a grant, and to any other person who has requested a copy. (d) Any person or agency may comment on the DEIS and the environmental effect of the proposal described therein within 45 days after notice of the availability of the statement is published in the Federal Register. A copy of those comments shall be mailed to the applicant by the person who files them pursuant to 47 CFR 1.47. An original and one copy shall be filed with the Commission. If a person submitting comments is especially qualified in any way to comment on the environmental impact of the facilities, a statement of his or her qualifications shall be set out in the comments. In addition, comments submitted by an agency shall identify the person(s) who prepared them. (e) The applicant may file reply comments within 15 days after the time for filing comments has expired. Reply comments shall be filed with the Commission in the same manner as comments, and shall be served by the applicant on persons or agencies which filed comments. (f) The preparation of a DEIS and the request for comments shall not open the application to attack on other grounds. SEC. 1.1317 THE FINAL ENVIRONMENTAL IMPACT STATEMENT (FEIS) (a) After receipt of comments and reply comments, the Bureau will prepare a FEIS, which shall include a summary of the comments, and a response to the comments, and an analysis of the

Selected Applicable Law 129 proposal in terms of its environmental consequences, and any reasonable alternatives, and recommendations, if any, and shall cite the Commission’s internal appeal procedures (See 47 CFR 1.101–1.120). (b) The FEIS and any supplements will be distributed and published in the same manner as specified in Sec. 1.1315. Copies of the comments and reply comments, or summaries thereof where the record is voluminous, shall be attached to the FEIS. SEC. 1.1319 CONSIDERATION OF THE ENVIRONMENTAL IMPACT STATEMENTS (a) If the action is subject to a hearing: (1) In rendering his initial decision, the Administrative Law Judge shall utilize the FEIS in considering the environmental issues, together with all other non-environmental issues. In a comparative context, the respective parties shall be afforded the opportunity to comment on the FEIS, and the Administrative Law Judge’s decision shall contain an evaluation of the respective applications based on environmental and non-environmental public interest factors. (2) Upon review of an initial decision, the Commission will consider and assess all aspects of the FEIS and will render its decision, giving due consideration to the environmental and nonenvironmental issues. (b) In all non-hearing matters, the Commission, as part of its decision-making process, will review the FEIS, along with other relevant issues, to ensure that the environmental effects are specifically assessed and given comprehensive consideration. [51 FR 15000, Apr. 22, 1986, as amended at 62 FR 4171, Jan. 29, 1997]

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C HA P TER 7

Possible Objections—Safety Issues

If you’re reading this book, and certainly if you’ve read this far, you’re anticipating that all manner of objections will be raised to your proposal, and you’re right. This chapter elaborates on some of the most common. If you’d like to see what a determined opponent can do to lobby against a broadcaster, see www.geocities.com/snohomishstewards/Towers_brochure_Final.pdf.

7.1 Preparing for the Permit Application and the Public Hearing If you pay attention to this chapter, you will find some good answers to opponents. When they have presented their objections, the chairman typically turns to the applicant and says: “How do you respond to that?” To avoid rambling and to respond directly, you may wish to make out 4 ⫻ 6-inch index cards with your own responses. You must avoid rambling. If you take several minutes for each response, the chairman will soon stop calling on you. You might wish to print out the sample “Answer Cards” from filename Answer Cards.pdf on the CD. These are formatted for pasting on 4 ⫻ 6-inch index cards.

How Not to Oppose a Tower Project The following case reflects what happens when local residents do not want a particular tower to be built but fail to tack down a single issue that is fatal to the tower project. T-Mobile filed an Environmental Assessment (EA) with its application, pursuant to Sections 1.1308 and 1.1311 of the Commission’s rules.1 The Petitioners’ objections were based on the National Environmental Policy Act of 1969 (NEPA), but were “conclusory” and wholly without merit—and it showed. They raised every issue including local controversy, effects on endangered species, RF emissions, effects on historical properties, etc. Needless to say, the proposal for an antenna tower submitted by T-Mobile for the Pierce Archery site in North Ridgeville, Ohio, received a “Finding of No Significant Impact” (FONSI) on the environment from the FCC. Several lessons can be learned from this case. A stop work order would never have been issued by the FCC if T-Mobile had prepared an Environmental Assessment before it began construction. 1

47 C.F.R. §1.1308 and §1.1311.

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The total delay went from June 14, 2002, to November 26, 2003, or 18 months. This allows you to put a cost on the risk of proceeding without the required EA. Though the FONSI was eventually issued, two conditions were attached. One was that the Fish and Wildlife Service (FWS) of the U.S. Department of the Interior required that no potential roost trees for the Indiana bat be cut between April 15 and September 15 of any year. The other was that, in order to protect the Massasauga rattlesnake, a species that is a candidate for listing as a threatened species, T-Mobile was required to conduct a 40-hour survey, and, if any of the species were determined to be present, refrain from construction when air temperature is over 65° and from habitat-disturbing maintenance activities from November 15 to March 15. The case is available at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-03-3826A1 .doc and on the CD as filename TMobile.pdf.

Before beginning your preparations for battle, take a moment to consider Marvin Wilson’s poem.

An Amateur Radio Tower by Marvin Wilson, VE7BJ (Originally appeared in the bulletin of the Point Grey Amateur Radio Club.) Why do people get upset when one puts up a radio tower? A few things in its favor: It Doesn’t . . . Squeal its brakes Screech its tires Blow its horn Roar its motor Slam its doors at ungodly hours Shine its headlights in your bedroom window Nor does it backfire It Doesn’t … Drop leaves that you have to clean up Grow branches over your house Drop fruit or nuts that block your downpipes Block your view like a tree or building Grow roots that damage your walk or driveway Nor do its roots plug your drains It Doesn’t . . .

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Bite you Bark or meow Leave deposits on your property Dig up your garden Scratch on your door Widdle on your trees Nor does it dig up and scatter your garbage It Doesn’t … Have boisterous parties Or play loud music Or have swimming parties through the night It doesn’t ring your phone (accidentally?) Nor does it ride bikes across your lawn It’s just quiet and has nothing to say.

7.2 Structural Safety If someone stands up at a public hearing and says that your structure could fall over and damage his house or injure his children, you can pretty much bet that the real objection is one of aesthetics. However, you must not ignore the question. The proper approach is to sympathize with the concern and address it. Here’s how to sympathize: Mr. Jones has expressed the fear that my proposed structure could damage his house or injure his child. He has every right to be concerned. I am very concerned about those same things.

And here’s how to respond: For that reason, please note that: ●

●

●

●

The proposed location was chosen so that should the structure ever fall it would be stopped by the tree line before ever reaching the ground. The proposed construction exceeds the requirements of the building code, and it is important to note that the building code already has safety margins built in. You’ll see that a certificate of compliance with all building codes is provided in the application, at Exhibit X. The construction will be under the supervision of the Building Inspector, whom we trust with the supervision of all other forms of construction in town, including the schools, churches, hospitals, and so forth.

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●

●

●

I have no objections at all if the Board would like to add a condition to the Special Permit that the construction must meet the requirements of the state building code and be constructed subject to the reasonable supervision of the Building Inspector. Because the proposed construction will be built in accordance with the building code and supervised by the Building Inspector, you can expect that it will be as safe as any house or building in town. (Note: This isn’t really giving anything away. With or without such a condition in the Special Permit, you may never be exempt from the state building code or supervision by the Building Inspector!) Failures as a result of construction are so rare that the liability insurance industry charges only a tiny premium for the risk of damage to persons not working on the tower or damage to property of another. This is proof positive that an antenna system in your backyard is safer than letting your teenage son drive! (Note: Humor in highly charged situations is always helpful, but don’t try it if you are uncomfortable at attempting humor in a public presentation. If you are uncomfortable, it will show and the humor will fall flat. And, it’s probably not a good idea to use this particular joke if the neighbor has a teenaged son in his household, but you did your homework and know who your neighbors and their children are, don’t you?) My company’s employees will be working in the building right under the tower. We don’t intend to put them at risk by the construction proposed.

Remember, neither federal nor state laws (the ones that provide some form of preemption with respect to zoning bylaws) will ever exempt you from construction safety requirements and meeting the provisions of the state building code. Health and safety will always override, as they should. Also, while the Board is understandably concerned with future liability should some injury arise as a result of the construction or the tower itself, concern over liability is no reason to deny a permit. (For a discussion of municipal liability lawsuits, see Chapter 15.) At this moment, we are discussing your appearance in front of the Zoning Board, asking for permission to put this structure where you’d like to put it. Possible building code violations can always be dealt with later. What you are addressing is the use and whether it is a permissible use, as well as whether or not it should be granted a Zoning Permit. Remember, even after you have constructed your antenna system, the Building Inspector has the right to come onto your land (since he has police power) to see if something is unsafe. If he finds that something is indeed unsafe, he can always remove or repair it and apply a lien on your building and equipment, as well as the land, to repay the town for any expenditure. Conclusion: Treat safety as a big issue, but it is a Building Inspector issue. It is not a use issue that belongs before the Board of Appeals.

7.3 The Building Code A new standard, Electronics Industry Association (EIA)/Telecommunications Industry Association (TIA)-222-G, came into effect on January 1, 2006. This new standard will be incorporated by reference

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into the International Building Code (IBC). At present, many state, county, and municipal building codes require conformance with the Uniform Building Code (UBC, IBC 2003). It may take a few years for the new IBC 2006 to be universally adopted. Copies of EIA/TIA-222-G can be purchased from the TIA, but they are exceptionally expensive. However, an online PDF presentation (http://www. mei1inc.com/NAB-2003presentation.pdf) contains many of the key differences in EIA/TIA-222-G, including new wind and ice zone maps, as contrasted with prior versions. It’s also available on the CD as filename EIA/TIA.pdf. One of the changes is in the wind zones. EIA/TIA-222-G contains over 100 pages of wind and ice zone information for every county in the United States. It has changed the way in which wind speed is specified from the traditional “mile of wind” approach to a 3-second maximum gust specification (referred to as V3s). The EIA/TIA-222-G minimum wind-speed requirement (applies to most counties in the United States) is now 90 mph for a 3-second gust, which is equivalent to a 75-mph “mile of wind,” a 65-mph sustained wind for 10 minutes, or a 62-mph sustained wind for 1 hour. Another aspect of EIA/TIA-222-G that could impact broadcasters and cellular carriers in the future is the new requirement to evaluate the risk to human life of new tower installations. When there is a risk to human life (for example, if a tower could topple on a residence or a populated area), the requirements become much more severe than current standards. For a new tower in a location where human life is not at risk, EIA/TIA-222-G is very similar to current requirements.

7.4 Fall Zone Occasionally a Zoning Board will want to know if the proposed tower will fall on neighboring land. Funny, they never ask that about a 10-story building on Main Street. For such tall buildings, they simply assume that the architect and structural engineers know what they are doing. With respect to towers, the members of the Board seem to have a completely opposite assumption. Do not, however, make this point by asserting that “it will be safe—the structural engineer knows what he is doing!” That is not wise. If you must deal with these questions, it is better to ask: “Why do you assume that the structural engineer doesn’t know what he’s doing? You don’t require special assurances for signs, flag poles, or any other structures.” Actually, towers can be incredibly strong and resistant to damage. They can even be “atom-bomb proof.” (Figure 7.1). If the question simply will not go away, you must deal with it. With respect to towers, the usual person to provide the required assurance is a mechanical engineer or a civil engineer. Note that, in general, professional engineers (PEs) are not licensed in specific fields. They are allowed to stamp what they feel qualified to stamp. Almost all are very careful about the use of their stamp, because of the liability that attaches. It is this question of liability that means generally you are not going to get a letter from a PE with a mere telephone request, unless the PE is employed by the manufacturer. The PE will have to do some analysis. That’s the same reason why doctors don’t like to prescribe over the phone. They want to see the patient.

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Figure 7.1 Hiroshima, after the bomb. Note standing tower to the far left.

Yes, you can argue that towers do not fall the length of their height, like a falling pencil. They are more likely to corkscrew downward. But, if pressed, there is a concept that is much more reassuring to Boards. That concept may be called a “mechanical fuse.” This was first introduced to me by John Corini, PE (whose amateur radio call sign is KE1IH).

7.4.1 A Mechanical Fuse If you design a self-supporting tower that narrows as it grows higher and you don’t change the materials, just the design, of each section and then you model the tower, you will find the fuse. While all sections of the tower must be strong enough to pass code by resisting wind load, there will be minor variations in how much stronger each section is than is required. Figure 7.2 is a diagram of such a modeling exercise on a Rohn SSV tower created by John Corini. If you look at Section 6N, you will see that it is the “weakest link,” although all sections exceed the TIA/EIA-222-F specifications. But, by virtue of being the weakest link, Section 6N is where the tower will fail. As is plainly visible, this is not at the bottom of the tower, but rather a considerable way up, as each section is 20 feet tall. This particular tower, a 100-foot Rohn SSV, has its weakest link between 20 and 40 feet down the tower (at a height of 60 to 80 feet above ground). Though we do not require a fall zone for a tall building, and there is good reason to argue that this entire concept of requiring a “fall zone” is not related to safety, if one must provide some sort of response, the fall zone for this tower is 40% of its height.

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100 Foot Free Standing Tower Results Maximum Stress Tower Section

Tower Section Element

7N 6N 5N 4N 3WN Tower Section

12 31 62 102 163 Tower Section

110 MPH Wind Load NOICE Maximum Tower Leg Load 43,977 pounds 46,980 pounds 49,030 pounds 31,270 pounds 17,029 pounds

AISC Maximum Allowable Load or Stress

Maximum Tower Max. Allowable Tower Max. Allowable Leg Stress Leg Load Tower Leg Stress 34,310 psi 50,685 pounds 29,775 psi 34,310 psi 50,686 pounds 31,808 psi 34,150 psi 55,624 pounds 28,962 psi 32,910 psi 40,389 pounds 25,485 psi 32,480 psi 22,423 pounds 24,680 psi

82.5 MPH Wind Load - 1/4⬙ Radial Ice

AISC Maximum Allowable Load or Stress

Element

Maximum Tower Leg Load

Maximum Tower Max. Allowable Tower Max. Allowable Leg Stress Leg Load Tower Leg Stress

7N

12

34,530 pounds

23,378 psi

50,685 pounds

34,310 psi

6N

31

35,950 pounds

24,340 psi

50,686 pounds

34,310 psi

5N

62

37,390 pounds

22,086 psi

55,624 pounds

34,150 psi

4N

102

22,780 pounds

18,566 psi

40,389 pounds

32,910 psi

3WN

163

11,430 pounds

16,565 psi

22,423 pounds

32,480 psi

Calculations by John F. Corini, P.E., KE1IH, Barkhamsted, CT

Figure 7.2 100-foot freestanding tower results.

When the “weakest link” fails, the tower will fail, but it will not fall the length of its height. Don’t believe this? See Figure 7.3.

7.4.2 Guyed Towers A similar analysis can be performed for a guyed tower because, after loading, the forces are not the same on all elements of the tower. Again, although towers are not designed to fail (they are designed to stand up), in the unlikely circumstance of a failure, the failure point is actually predictable. 7.4.2.1 A Second Anchor For guyed towers, putting more than one anchor in each direction may be the easiest solution. When guy wires are terminated at multiple anchors, how likely is it that two or more guy anchors or guy wires will fail at the same moment in time? There are just too many points of attachment. Most of the manufacturers have gone through this exercise before and can generate a drawing showing the likely fall pattern or at least a written description of what happens. 7.4.2.2 Debris Pattern On December 19, 2004, a light plane struck the 750-foot-tall tower of KFI-AM, 640 kHz, Los Angeles, on its approach path to the Fullerton airport (Figure 7.4). The tower collapsed mostly on itself,

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Figure 7.3 Self-supporting tower folded in the middle (KSON-AM). (Photograph courtesy of www.sbe36.org.)

Figure 7.4 The KFI-AM tower after it was struck by a plane in 2004. (Photograph by Marvin Collins, W6OQI.)

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touching none of the nearby buildings and with its top and bottom within 20 feet of each other when it was all over (see http://sakrison.com/radio/KFItowercollapse.html). Questions about the KFI collapse may be addressed to Paul Sakrison at [email protected].

7.4.3 Not a Reason for Denial The possibility that a tower might fail, even though it exceeds (is constructed stronger than) building code requirements, is not a reason to deny a permit. Why not, you ask? Because, speaking generally, a Board cannot invent its own building or zoning codes. Building codes, depending on your jurisdiction, may be adopted on a statewide basis, by the county, or even by the city—but a building code is never invented by a Zoning Board at the time of an application. If you find yourself in a situation where the code enforcement department or a Board is making it up as they go along, do not begin the conversation by saying “You can’t do that.” Instead, ask for the basis in the code for the distance required. The nonconfrontational way to do this is to write or say: “Could you please direct me to the section of the code that specifies this requirement? I want to see how it is written.” Requiring a setback (distance from the structure to a boundary) equal to height, height times 1.5, height times 2, or whatever scheme an opponent thinks up to frustrate the construction of a tower, may or may not be in the code. If some ridiculous setback requirement is actually in the code, turn the matter over to a lawyer to find out if, in your state or federal circuit, there is a case which has overturned such a requirement. Though the possibility of failure is not a reason for denial, don’t have a heart attack if the Building Inspector requires something called “controlled construction.” This is simply requiring someone licensed to supervise construction who is not a part of the erector’s organization, or yours, to inspect and oversee the construction. Yes, controlled construction adds to costs, and yes, it can slow down construction—because the person with the license may need to scamper to the work site and inspect something before the erector can move on to the next step. But hiring such a person can be less expensive than buying additional land, applying to the FCC for a minor or major change, and so forth.

7.4.4 A Useful Letter On the other hand, there are occasions when controlled construction is not required, and the request for information on a “fall zone” is not from a building official under power invested in him by the building code. The request may come from a member of a lay Board (the Zoning Board of Appeals, or the Planning Board). The member may simply be seeking reassurance in a field that is not familiar to most members of such boards. Figures 7.5 and 7.6 are an example of a letter generated by a PE in the employ of a popular manufacturer. It shows you what can be done. Speaking of a fall radius, see the article “Modeling, Loading, and Preliminary Design Considerations for Tall Guyed Towers” by C. Gantes et al. (Computers and Structures, 49(5), 797–805, 1993), in which the authors summarize the results of an investigation they carried out on the collapse of a

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Figure 7.5 Letter from Sabre Communications Corp.

Possible Objections—Safety Issues

Figure 7.6 A somewhat comparable letter, generated by Rohn Manufacturing, also a major manufacturer of towers.

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1900-foot-tall guyed structure under ice and wind loads. The tower was 9 feet per side and had a maximum thickness of 10 inches of ice at the top. Figure 2 of that article appears to show that the tower debris fell within 80% of a circle the length of the guy lines. Unfortunately, the article does not mention the guying radius; however, if the guying were 80% and the debris field is within 80% of that, then the debris field was within 64% of height.

7.4.5 Signs Signs that warn approaching hikers, hunters, or snowmobilers that they are approaching a tower (placed at the perimeter of the hypothetical “fall zone”) may be another way to approach a compromise with a hostile board. This approach succeeded for the Koor Communications station WUVR-AM, 1490 kHz, Lebanon, NH. Signs are relatively inexpensive, and certainly less expensive than the lawyer time to fight the idea, if a Board member really has a bee in her bonnet that you should warn the public (a public that is likely comprised entirely of trespassers). If you must go forward with signs, before you start negotiating, do the math (see Table 7.1). As you can see from the chart, signs are far less costly than either lawyering to fight the concept or fencing of almost any kind. Table 7.1: Number of Signs if Fall Zone Signs Are Required. Spacing (degrees)

10

15

20

Number of signs

36

24

18

Tower Height (ft) 100 200 300 400

Distance between Signs (ft) 17.43 34.86 52.29 69.72

Cost per sign $15.00 $30.00

26.11 52.21 78.32 104.42

34.73 69.46 104.19 138.92

Total Cost $540.00 $1,080.00

$360.00 $720.00

$270.00 $540.00

7.5 Airspace Safety Occasionally someone will rise during the public hearing and ask two different kinds of questions that have to do with airspace safety. Roughly, those two questions might be: ●

“Will this thing be painted orange and white and be lighted?”

●

“Don’t you have to get permission from the FAA first?”

What’s really going on here with the painting and lighting question might be that the questioner is expressing an innocent and curious question, a question that may be totally reasonable in the context of a neighborhood. However, the questioner might also be trying to throw gasoline on the fire of “it’s ugly and not appropriate for our neighborhood.”

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Let’s look more closely at this painting and lighting question. You need to know if you are close to an airport and the height of the tower you propose. For heights under 200 feet, your public position is that you don’t intend to paint and light unless federal law requires it. If you are planning a structure no higher than 20 feet above surrounding trees and you are not near an airport (more than 20,000 feet away, which is 6.1 km or 3.8 miles), you have an automatic exemption for the Federal Aviation Administration (FAA) and Federal Communications Commission (FCC) limits. Nonetheless, please consult the FCC website to see if the rule applies to you. (See filename FCC Registering Antennas.pdf on the CD.)

7.5.1 Painting and Lighting Furthermore, and again assuming that painting and lighting are not required by the FAA regulations in your situation, if the Board wishes to make it a condition of the permit that the structure will be neither painted for marking nor lighted, that’s fine with you, too! After all, the condition is totally harmless. Nonetheless, your best position is: “We will do what federal law requires. We are happy to agree that we will not do what federal law does not require. But, if the federal law requires painting and lighting or flashing lights of some kind, that’s what we’ll do. Given the federal preemption in this matter, as a municipality, your only choice may be to tell us whether you’d prefer strobe lighting and no paint, or red lighting and paint.” No matter what, don’t fall into the hole that WLTH-AM, Gary, IN, fell into. In 2004, on appeal, the FCC upheld a fine of $16,000 for several tower violations, including not registering its tower, not letting the FAA know tower lights were out, and not having red obstruction lighting. At the time, Radio World reported: WLTH said lightning caused sporadic power loss and also hunters shot out the tower lights. Although WLTH corrected the problems, the agency fined the station for continuing to operate without tower lights and not informing the FAA of the outages quickly enough.

For greater detail on FAA regulations, see FAA Advisory Circular 70/7460-21, “Proposed Construction or Alteration of Objects That May Affect the Navigable Airspace.” For tremendous detail, see FAA Advisory Circular AC 70/7460-1H, “Obstruction Marking and Lighting” (http://wireless.fcc.gov/ antenna/index.htm?job⫽documentation_paint_light). The actual regulation upon which the FCC public information page is based is found at 14 CFR Part 77. The 200-foot height rule is covered, along with rules concerning nearby airports and exemptions. If the question comes up, it may be a good idea to give the Chairman a printout of “1. Do You Need To Register?” (filename FCC Registering Antennas.pdf on the CD) at the public meeting, although doing so at the meeting may slow down the process while the Board studies the new material. Handing over a printout of this federal government document is another way to assure the Board that you’ve done your homework and you are really prepared. It is a confidence-building measure.

7.5.2 FAA Permission Now, let’s look more closely at the FAA permission question. Since most applicants are sensible enough to avoid locating within 20,000 feet, or even 1.52 km (5,000 feet) of an airport, FAA permission is very seldom necessary. However, a common delay tactic by opponents is to ask the Board

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if FAA permission must be obtained. Most Boards will accept your assurance that you’ve checked and FAA permission is not required. A quick visit to the TOWAIR website (http://wireless2.fcc.gov/ UlsApp/AsrSearch/towairSearch.jsp), filling in the required date, and printing out the result can also be reassuring. Nevertheless, some Boards will want to see the rule for themselves. For others, it will be adequate to include a printout of the results from the FCC’s TOWAIR website (see Figure 7.7). A few Boards will want a lawyer’s letter opining that no FAA permission is required. In any event, all Boards will be impressed with your preparation if you show up with an FAA “No Hazard” letter. In general, this is a question of lead time. If you are planning now for a hearing in six months to a year, you may apply to the FAA for what is not really “permission” but rather a “Certificate or Determination of No Hazard,” sometimes also called a “No Hazard” letter. An example of such a letter, issued to Jeff Briggs, K1ZM, is shown in Figure 7.8 and is on the CD as filename FAA No Hazard K1ZM.pdf. Incidentally, a “No Hazard to Aviation” decision is fairly bulletproof. See Aircraft Owners and Pilots Association v. Federal Aviation Administration, 600 F. 2d 965 (D.C. Cir. 1979), which affirmed a no-hazard decision and held that, though informal, “the adjudicatory procedures employed by the FAA created a record which contains substantial evidence supporting the no-hazard decision.” The process begins by obtaining and filing FAA Form 7460-1, “Notice of Proposed Construction or Alteration” (see filename FCC FAA AntennaForm.pdf on the CD). Fill out the form and file it with the appropriate regional FAA office listed on the cover page. If you absolutely must know in advance, and in a hurry, about whether or not you are likely to receive an FAA no-hazard determination, private consultants are available. One such company is Airspace Safety Analysis Corporation (ASAC), Atlanta, GA, now owned by Boeing. (See the article “Airspace Safety: An Integral Part of Your Tower Management Program,” by D. Hunter, in Cellular Business, October 1991, p. 28ff.) Another, though smaller, company, created by a former ASAC employee, is Airspace Consulting, Inc. (http://airspace-ken.com). I have used Federal Airways & Airspace (FA&A; 1423 South Patrick Drive, Satellite Beach, FL 32937; http://airspaceusa.com). FA&A lists some handy Internet resources at http://www.airspaceusa.com/web_resources.htm. If you do require a Notice to Airmen (NOTAM), you must also file FCC Form 854, and eventually, though it may require some negotiation with the FAA, you will receive an FCC Structure Registration.

7.6 Attractive Nuisance and Child Safety If this is a suburban neighborhood, someone may jump up at the public hearing and suggest that an antenna-support structure is inherently an attractive nuisance. That would be defined as something dangerous that attracts children to climb it, children who may then suffer an accident by falling off the structure. This objection is usually raised by someone whose real objection relates to something else, but you should ignore that fact. You can probably predict who this person will be. It will be someone in law, insurance, or real estate (who else knows about the doctrine of attractive nuisance?). This person probably has a child, usually a curious male child. If you respond by saying that there are no children in the neighborhood, even if it is true, you are effectively conceding that the claim is true and that you wish to ignore the potential

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Figure 7.7 Results from an inquiry on the FAA’s TOWAIR website.

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Figure 7.8 An FAA “No Hazard” letter issued to Jeff Briggs, K1ZM.

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danger and hope for the best. Bad strategy. Remember, as you respond, that you are trying to be a good guy (wearing your white hat).

7.6.1 Anticlimbing Devices The best answer is: “Well, I certainly agree with [person’s name, beginning with Mr., Ms., or Mrs. as a sign of public respect] that my proposed structure is attractive. (Pause and smile! Beam!) But, I cannot agree that this structure is an attractive nuisance, as the legal term implies. Nonetheless, I’d like to call the attention of the Board to page xx of the application, where I have shown the type of anticlimbing device [or, perhaps, the fence and razor wire] that I propose to construct.” See the photographs in Figures 7.9 and 7.10, which are also included on the CD (filenames AntiClimbFence.jpg and K1HT Anti-climb.pdf).

Figure 7.9 Barbed wire atop fence surrounding a 250-foot Rohn KD tower in Wales, ME. (Photograph by the author, courtesy of Strong Signals of Lewiston-Auburn, LLC.)

7.6.2 Bushes, Guy Guards As guy wires near the ground, it becomes possible to consider them a hazard, in the sense that a child could run into a set near the anchor. One attractive solution is to plant evergreen bushes near the anchor rod. Here’s another solution. Utility companies use slit plastic tubes, called “guy guards,” on their guy wires to provide visibility (see Figure 7.11). One manufacturer is Preform Line Products, who

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Figure 7.10 Plywood anticlimbing sheets surrounding a structure. (Photograph by the owner of the antenna structure, David C. Hoaglin.)

also make the so-called “big grips” for guy wires. Check http://www.preformed.com/artsfest/files/ps/ Sec21_PLPCommCatalog.pdf.

7.7 Radiation and Emissions Safety Individuals who are afraid that their children may suffer headaches or some other health effect may know that there is really no good science to back up their position. As a result, it has probably taken considerable nerve for him or her to speak up. This person deserves respect and a thoughtful answer. Moreover, the Board will appreciate a thoughtful reply.

7.7.1 The Difficulty of Proving a Negative You might say: “Mr. Chairman, the concern expressed puts me in an awkward position. Logically, I will never be able to prove the absence of harm, because even after I point to 100 years of experience with radio communications, the questioner can always reply that we just haven’t pinpointed the harm

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Figure 7.11 Guy guards—slit plastic tubes that fit around the base of guy wires—are an attractive and simple way to increase the visibility of guy wires in the only place you want them to be extra visible: near the ground. (Photograph by the author.)

yet. This is the inherent problem with what is known as ‘proving the null hypothesis.’ Nonetheless, there are several things I can say that may aid the Board in its decision making.”

7.7.2 Is It Safe? “I have already done what federal law requires with respect to investigating this question of safety. Using the equations provided by the Federal Communications Commission, developed after an extensive public process that included all of the relevant agencies and professional organizations, including the EPA, I have calculated the power density at the property line of our site [or at the property line of the nearest neighbor]. The system proposed is well within federal requirements and presents a lower exposure than an antenna system mounted lower to the ground.1 1

This refers, of course, to calculations made using the OET-65 guidelines, issued by the FCC’s Office of Engineering Technology.

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“In fact, should you have continuing doubts about the safety of this installation, the correct engineering response is to suggest a higher antenna-support structure. Increasing the height above ground would reduce exposure, because exposure decreases as the square of the distance. “Let me round out my response by saying that, with respect to safety, one way to understand the safety guidelines is that the federal standard for the maximum permissible exposure, based on the best scientific evidence currently available, has a 50-fold safety margin built into it; that is, radiofrequency emissions must be below 1/50th, or 2%, of the level at which the expert scientific community has determined that “adverse health or safety effects” begin to occur. The FCC guidelines provide an objective, measurable standard.” For situations involving personal wireless services, there is a strict limitation on the powers of local zoning authorities created by the Communications Act of 1996; see 47 USC §332 (c)(7)(B)(iv): 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.

And what is meant by “personal wireless services”? The definition may be found at 47 USC §332(c)(7)(C)(i): (T)he term “personal wireless services” means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services.

As you would expect of complex legislative writing, the definitions don’t end there. The term “commercial mobile service” is defined by the Communications Act of 1934, as amended (“the Act”), as: … any mobile service … that is provided for profit and makes interconnected service available (A) to the public or (B) to such classes of eligible users as to be effectively available to a substantial portion of the public, as specified by the Commission. Communications Act §332(d)(1), 47 USC §332(d)(1).

“Mobile service” is defined at Section 3 of the Act, Communications Act §3(27), 47 USC §153(27). The term “commercial mobile service” came to be known as the “commercial mobile radio service.” 47 CFR §20.3. Source: FCC DA-08-453A1.doc. Only now that the reader has been dragged through several levels of the Communications Act is it safe to reveal that those services are Enhanced Data Rates for Global System for Mobile Communications Evolution (EDGE), Wideband Code Division Multiple Access (WCDMA), High-Speed Uplink Packet Access (HSUPA), High-Speed Downlink Packet Access (HSDPA), Evolution Data–Optimized (EV-DO or EV-DO Rev A), Mobile WiMax IEEE 802.16e-2005 (WiMax), Long-Term Evolution (LTE), Ultra Mobile Broadband (UMB), Advanced Wireless Services (AWS), wireless operators using Broadband

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Radio Service/Educational Broadband Service (BRS/EBS) spectrum in the 2.5-GHz band, and Mobile Satellite Service (MSS). But, what is the significance of the preceding paragraphs defining commercial mobile services? Harken back to the idea that the real opposition to an antenna system is likely to be based on aesthetics, except for the opposition of the true believers who think there is harm at levels way below the first observable biological effects, as well as those who are not convinced there is harm but believe in the so-called “Precautionary Principle” (more about this elsewhere2). If you believe that the opposition to the structure is really based on its height and visibility, and you wish to avoid arguments about the potential of harm from exposure to electromagnetic waves, even at levels below the IEEE and FCC standard, then consider a multistep strategy: 1.

Justify the structure and its height for use in a commercial mobile service (see above for qualifying uses), and obtain a permit in a proceeding where objections based on RF exposure are improper; see the above discussion of 47 USC. §332(c)(7)(B)(iv).

2.

Erect the structure and establish the service, and then

3.

Apply to add the “unprotected” broadcasting or other use (i.e., the noncommercial mobile service), such as an FM station (normal or low power) or a TV station.

With this strategy, the tower is up, and the “exposure” argument, as an argument to prevent the initial construction, has been taken away. Yes, opposition could be mounted to the presence of an FM station, for example, but the argument would no longer involve whether the structure could be erected. For tower-based transmitters, comparisons can also be made to the cellular phone studies. Although the low-level exposure from tower-based transmitters and the much higher exposure from cell phones are different, the lack of scientific evidence supporting the health hazards is the same. The measurement is in microwatts per centimeter squared (µW/cm2). According to the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA), the lack of evidence is based primarily on the following criteria: ●

●

There is no evidence of a dose–response curve. There is no known plausible biological mechanism for radiofrequency radiation to cause cancer or other diseases at the levels found in the mobile phone system.

Current research indicates that, at the exposure levels indicated above, radiofrequency radiation is not known to have any adverse health effects. ARPANSA’s Fact Sheet may be found at http://www. arpansa.gov.au/RadiationProtection/Factsheets/is_antenna.cfm and on the accompanying CD, filename ARPANSA.pdf. 2

See, for example, Foster, K.R. et al., Risk management: science and the precautionary principle, Science, 288, 979–981, 2000.

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Make sure you do your own calculations using the FCC’s OET-65 formulations of the estimated RF power density as a percentage of the maximum permissible exposure (MPE) for an uncontrolled environment. This is the relevant test. As you do your calculations, be sure to remember that you should adjust average transmitter power delivered to the antenna by several factors: ●

Feed-line loss

●

Connector loss (relevant at VHF, UHF, or microwave frequencies)

●

Duty factor (but not relevant to a broadcast station with constant output)

●

Time (generally, you multiply power by 0.67 for 10 minutes on, 10 minutes off, and 10 minutes on—a 50% duty-cycle during a 30-minute test period)

●

Calculated distance to the area of interest

●

Ground reflections

Consider whether you should submit the page labeled “Calculation Results” with your permit application or whether you should hold it in reserve to see if the issue is raised during the public meeting. (In many communities the issue never arises, and perhaps you should give no reason to scare people in advance.) If you think local environmental activists are making your life difficult, consider yourself blessed that you are not running Vatican Radio. On May 9, 2005, the Associated Press reported that Cardinal Roberto Tucci, former head of Vatican Radio’s management committee, and the Rev. Pasquale Borgomeo, the station’s director general, had been convicted of “dangerous launching of objects” for transmitting electromagnetic waves. Though their sentences were suspended, the Italian limits for exposure to radiofrequency were invoked. Those limits are lower than the IEEE and U.S. standards. On June 5, 2007, Catholic News Service reported that an Italian Appeals Court had overturned the 2005 convictions, but that didn’t end it. On May 13, 2008, USA Today reported that Italy’s top criminal court, the Supreme Court of Cassation (Corte Suprema di Cassazione) had overturned the acquittals and ordered new appeals. No final result had been reached as of press time.

7.7.3 Local Health and Safety Regulations Are commercial radio, TV, or cellular telephone transmissions exempt from local health and safety regulation of RF exposure? Only cellular telephone has complete federal protection (see the previous discussion). As a starting place, consult the FCC website http://www.fcc.gov/oet/rfsafety. The CD accompanying this book has source materials (filenames FCC OET-65.pdf and FCC OET-65 Supplement B.pdf). Also very useful for local governmental authorities considering RF Safety is the FCC document on the CD, filename FCC Local Government Guide.pdf. The FCC’s Report and Order covering this subject is FCC 96-326, released August 1, 1996, entitled In the Matter of Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, ET

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Docket No. 93-62 (http://www.fcc.gov/Bureaus/Mass_Media/Databases/documents_collection/96-326 .pdf). At paragraphs 164–168, the FCC decided:

¶ 164. . . . To date the Commission has declined to preempt on health and safety matters. However, the Commission has noted that should non-Federal RF radiation standards be adopted that adversely affect a licensee’s ability to engage in Commission-authorized activities, the Commission would consider reconsidering whether Federal action is necessary. ¶ 167. . . . At this point, it does not appear that the number of instances of state and local regulation of RF emissions in non-personal wireless services situations is large enough to justify considering whether or not they should be preempted. ¶ 168. . . . Once states and localities have had an opportunity to review and analyze the guidelines we are adopting, we expect they will agree that no further state or local regulation is warranted.

If you are pressured to show conformance with a state law, start with a full Internet search of your state government website, using terms such as “nonionizing radiation,” “radiofrequency exposure,” “RF emissions,” and “radiation.” The first approach in any response to questions like this is to search for the state regulation, so you can see if you meet the requirements of the regulation. Here is a sample letter referring to applicable regulations in Massachusetts:

January 10, 200n Mr. Health Agent Health Agent, Town of Yourtown Town Office Building Yourtown, MA 00000

FAX: 508/111-2222

Dear Mr. Agent: You have asked if 105 CMR §122: NONIONIZING RADIATION LIMITS FOR THE GENERAL PUBLIC FROM NON-OCCUPATIONAL EXPOSURE TO ELECTROMAGNETIC FIELDS, EMPLOYEES FROM OCCUPATIONAL EXPOSURE TO ELECTROMAGNETIC FIELDS, AND EXPOSURE FROM MICROWAVE OVENS is applicable to a proposed antenna system to be located at 6 Hostile Lane, Yourtown, MA 00000. The short answer is that this is a situation covered by [cite exemption], and it may be installed “without the approval of the Director.” No filing or approval is necessary. See 105 CMR §122.021. [Company name] does not propose, nor does it use, an emitter that exceeds that threshold. This proposal is thus exempt. In the interest of putting any concern to rest, I am pleased to explain why transmitters in the [name of service, such as broadcast service, paging service, etc.] do not make filings seeking approval of the Director of the Department of Public Health.

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[Explain how you calculate your exposure.] This is, by the way, exactly how the FCC makes such a calculation. See “____” Supplement ___ ____to OET Bulletin 65 (Edition 97-01). See: www.fcc.gov/oet/info/documents/bulletins/#65. [Author’s note: to find the correct supplement, go to http://www.fcc.gov/oet/info/documents/ bulletins/.] Thus, under the Massachusetts regulation, this type of emitter with an average of 500 watts is clearly not required to seek approval of the Director of the Department of Public Health. The precise answer you seek is that, like all citizens, the company is subject to the requirements of 105 CMR §122, but the regulation does not require any filings, nor any permissions, from either the Director of the Department of Public Health or a town health agent. Sincerely, Fred Hopengarten, Esq. c: Counsel for [Company] Co-counsel, Esq. Client

If you are seriously concerned about this issue and do not wish to rely on the federal regulation (though you would be perfectly correct to rely on the federal regulation), you may obtain a letter from a professional engineer, such as the one prepared by Daniel Goulet and available on the CD as filename RF Safety Report.pdf. 7.7.3.1 Other Services The FCC’s position on federal preemption for other services is nuanced but surprisingly readable. Perhaps it is just best to insert it here.

C. Federal Preemption 164. In the past, parties have requested that the Commission preempt state and local authority over RF exposure matters. To date the Commission has declined to preempt on health and safety matters. However, the Commission has noted that should non-Federal RF radiation standards be adopted that adversely affect a licensee’s ability to engage in Commission-authorized activities, the Commission would consider reconsidering whether Federal action is necessary. 165. In the Notice, we did not discuss Federal preemption of state and local regulations regarding RF radiation exposure. However, many commenters request that we address this matter by establishing Federal preemption of state and local regulations concerning RF radiation exposure. Two Petitions for Rule Making have been filed in this docket requesting a Further Notice of Proposed Rule Making to address the preemption of non-Federal government regulations concerning RF radiation hazards. The Village of Wilmette, Illinois, and Ergotec Association, Inc., in late-filed reply comments, oppose federal preemption of local RF exposure regulations.

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166. Decision. In the past the Commission has hesitated to intrude on the ability of states and localities to make regulations affecting health and safety. Many of the comments indicate that a patchwork of divergent local and State regulations could pose a burden on interstate communications. However, since these comments were filed, Congress has passed the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996). Section 704 of the Telecommunications Act amends the Communications Act by providing for federal preemption of state and local regulation of personal wireless service facilities on the basis of RF environmental effects. The Telecommunications Act also provides for resolution of conflicts related to the regulation of RF emissions by the courts or by petition to the Commission. Accordingly, we are amending §1.1307 of our rules to incorporate the provisions of Section 704 of the Telecommunications Act. 167. The Telecommunications Act does not preempt state or local regulations relating to RF emissions of broadcast facilities or other facilities that do not fall within the definition of “personal wireless services.” It would appear from the comments that a few such regulations have been imposed, generally as a result of health and safety concerns. At this point, it does not appear that the number of instances of state and local regulation of RF emissions in nonpersonal wireless services situations is large enough to justify considering whether or not they should be preempted. We have traditionally been reluctant to preempt state or local regulations enacted to promote bona fide health and safety objectives. We have no reason to believe that the instances cited in the comments were motivated by anything but bona fide concerns. 168. We believe that the regulations that we are adopting herein represent the best scientific thought and are sufficient to protect the public health. Once states and localities have had an opportunity to review and analyze the guidelines we are adopting, we expect they will agree that no further state or local regulation is warranted. Should our expectations prove to be misplaced and should FCC licensees encounter a pattern of state or local activities which constitute an obstacle to the scheme of federal control of radio facilities set forth in the Communications Act, they should present us with such evidence as well as their view of the legal basis which could justify FCC preemption of state and local ordinances. At this time, however, we deny the petitions from the EEA and from Hammett and Edison, as well as the comments from several parties, requesting a broad-based preemption policy to cover all transmitting sources. V. CONCLUSION 169. To protect public health with respect to RF radiation from FCC-regulated transmitters, and to fulfill our responsibilities under NEPA, we are updating our guidelines for evaluating the environmental impact of RF emissions. We believe that the guidelines we are adopting will be of benefit both to the public and to the telecommunications industry. They will provide assurance that recent scientific knowledge is taken into account regarding future decisions on approval of FCC-authorized facilities and equipment.

Reading between the lines, the FCC appears to have said something like the following: We’ve adopted a good standard, but we won’t preempt, except our rules are modified as required by the Communications Act of 1996 to promote the spread of cellular telephone and other commercial mobile services. That is a preemption. If some jurisdiction adopts rules that would have the effect of frustrating the purposes of the Communications Act with respect to other services, affected parties “should present us with such evidence as well as their view of the legal basis which could justify FCC preemption of state and local ordinances.” Then you can hold your breath while we check to see which Commissioners will vote which way.

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7.7.4 Some Great, Historic RF Battles Won by Broadcasters 7.7.4.1 WIZN-FM, Charlotte, VT (serving the Burlington, VT, Area) The case of Freeman v. Burlington Broadcasters, 204 F. 3d 311 (2d Cir. 2000), cert. denied, 531 U.S. 917 (2000) (http://www.fcc.gov/ogc/documents/opinions/2000/97-9141.doc), involved a host of plaintiffs, including Mary Beth Freeman, formerly of Charlotte, VT, which happens to be where the WIZN-FM transmitter, then owned by Burlington Broadcasters, was located. In this radiofrequency interference (RFI) case, the Court found that “given the FCC’s pervasive regulation in this area . . . allowing local zoning authorities to condition construction and use permits on any requirement to eliminate or remedy RF interference ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” You may not be surprised to learn that the primary address of the EMR Network, a nonprofit organization, is also Charlotte, VT. According to its website, the purpose of the EMR Network is as follows: ●

●

●

●

●

●

●

To educate the public, environmentalists, journalists, technical writers, government officials, scientists and clinicians about the body of research which exists on the biological effects of low-intensity, nonthermal exposures to nonionizing radiation. To help citizens groups and municipal agents network among themselves regarding where this body of knowledge intersects with public health and local land-use regulations. To foster intelligent laws at the state and federal levels to adequately protect the public regarding exposures from low-intensity nonionizing radiation. To reduce exposure levels of nonionizing radiation to the public and EMR professionals to levels as-low-as-reasonably achievable—the ALARA principle. To mitigate unnecessary exposures from consumer products, such as cell phones, computers, microwave ovens, and the myriad 60-Hz technologies, to as low as reasonably achievable, through research, design and shielding modifications. To create and maintain a bridge between the scientific community, the public, and lawmakers regarding a full range of knowledge about nonthermal effects from nonionizing radiation. To create and maintain the appropriate, unbiased, ongoing research across a range of frequencies but with a particular emphasis on radiofrequency/microwave bands.

Also in Vermont, you can find The EMR Policy Institute, using a Post Office box in Marshfield, VT, which is, according to Google Maps, just 1 hour and 12 minutes away. According to a November 2003 press release,3 Atty. Deborah Carney, of Golden, CO, past president of Canyon Area Residents for the Environment (CARE), was then joining the Board of Directors of The EMR Policy Institute. CARE opposed proposals for the construction of additional broadcast antennas for digital television transmitters to serve the Denver, CO market.

3

See http://www.emrpolicy.org/news/press/pr_6nov03.pdf.

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The EMR Policy Institute press release also listed as members of its Science Advisory Group, among others: ●

●

Raymond S. Kasevich, who later appeared as an expert witness in the WIZN-FM (VT) RF emissions case Henry C. Lai, Ph.D., of the University of Washington, who would later appear as an expert witness in Newman v. Motorola, Inc.4 (where the plaintiff claimed that his use of a wireless handheld telephone manufactured by Motorola caused his brain cancer)

In Newman v. Motorola, Inc., by the way, the District Court held: “Because no sufficiently reliable and relevant scientific evidence in support of either general or specific causation has been proffered by the plaintiffs, …the defendants’ motion [to exclude the testimony of plaintiffs’ proposed experts] will be granted.” Note Judge Blake’s comment on Dr. Lai’s work below. Lai was supposed to testify at a hearing in the KRKO-AM 1380 matter (see below) but declined after receiving a public records request (as a government employee at the University of Washington). The Newman case was litigated by powerful teams on both sides. In the end, District Court Judge Catherine C. Blake wrote: In summary, the causation opinions proffered by the plaintiffs’ experts do not pass the Daubert test.1 Their reasoning, theories, and methodology have not gained general acceptance in the scientific community, as demonstrated by the numerous national and international scientific and governmental published reports finding no sufficient proof that use of handheld cellular phones causes human brain cancer, and by the array of established, experienced, and highly credentialed experts called to testify by the defense. The only published peer-reviewed epidemiological study finding such causation has serious flaws, and reliable epidemiology is essential before any link between animal studies and human cancer causation can be made. Neither Dr. Hardell’s work2 nor Dr. Lai’s animal studies, heavily relied on by the plaintiffs’ experts, have been replicated or otherwise validated by other scientists. Further, Dr. Lai’s published studies lack relevance, or “fit,” when applied to RFR at cell phone frequency. Source: Newman v. Motorola, Inc.,218 F. Supp. 2d 769 (D. Md. 2002), also available at the Court’s official web site as http://www.mdd.uscourts.gov/Opinions/Opinions/newman0902.pdf or at http://news.findlaw.com/hdocs/docs/cellphone/newmanmotorola93002mem.pdf. 1

The Daubert test is explained in the next sentence. Here is how the judge wrote about it: “When testimony concerning scientific, technical, or other specialized knowledge is offered in support of a party’s claim, the trial judge must ensure under Rule 702 of the Federal Rules of Evidence that any such testimony is ‘not only relevant, but reliable.’ Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993).” 2 Hardell was another expert witness for the Newman side of the case.

4

For the U.S. District Court decision, see Newman v. Motorola, Inc., 218 F. Supp. 2d 769 (D. Md. 2002). To find this case, with its extensive discussion of the evidence on the Internet, see http://www.mdd.uscourts.gov/Opinions/Opinions/newman0902.pdf or http://news.findlaw.com/hdocs/docs/cellphone/newmanmotorola93002mem.pdf. Do not be confused and try to look for substance on questions of RF dangers in the prior federal district court decision of the same name, which may be found at 125 F. Supp. 2d 717 (D. Md. 2000). The prior decision deals with (1) jurisdiction, tossing out some defendants; (2) the Maryland Consumer Protection Act, saying it does not apply; and (3) some technical issues of discovery. The opinion of the U.S. Court of Appeals for the Fourth Circuit, Newman v. Motorola, Inc., affirming the District Court opinion on the evidence (the 2002 decision), is technically “unpublished,” which means it has no citation to the Federal Reporter series and cannot be cited as precedent. Nonetheless, the Fourth Circuit’s opinion can be found at http://news.findlaw.com/hdocs/docs/cellphone/nwmnmot102203uopn.pdf.

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In other words, people who may oppose you get around. Don’t be surprised, should you get into a situation involving claims of harm from nonthermal or nonionizing radiation, to see some of the same names pop up that you may have seen associated with other cases. After losing the case involving the potential of interference to local public safety communications (Freeman v. Burlington Broadcasters), Ms. Freeman (with others from the first case, the RF interference case) was involved in the appeal and attended hearings in a subsequent case against WIZN-FM before the Vermont Environmental Board, claiming that, among other things, RF was “undue air pollution.” The attorney in both matters was Gerald R. Tarrant, Esq. The owners of WIZNFM were greatly relieved to win both cases. In the case before the Vermont Environmental Board, some findings of fact were as follows:

20. In 1996, the Federal Communications Commission (FCC) adopted safety guidelines to regulate human exposure to RFR (FCC Guidelines). The FCC Guidelines are based on the recommendations of National Council on Radiation Protection and Measurements (NCRP) Scientific Committee 53 (NCRP Report No. 86) and the Institute of Electrical and Electronics Engineers (IEEE) Standards Coordinating Committee 28 (IEEE C95.1-1991). 21. The FCC has acknowledged that it is not a health agency and that it defers to the comments of the Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), the National Institute for Occupational Safety and Health, and the Occupational Safety and Health Administration. Each of these agencies has endorsed the FCC Guidelines, as well as numerous nongovernmental organizations such as the International Commission on Non-Ionizing Radiation Protection (ICNIRP) and IEEE. 22. The FCC Guidelines establish Maximum Permissible Exposure (MPE) limits, which “are derived from exposure criteria quantified in terms of SAR” @ Exhibit B-3 at 8. 23. The established threshold SAR is 4 W/kg. This value represents the whole-body average rate of exposure which was found to disrupt learned behavior in laboratory animals. Specifically, this standard is based on research that shows a decrease in the ability of food-deprived laboratory animals to seek food. 24. To account for any uncertainties in the data and increase confidence that adverse effects will not occur, the FCC reduced the established threshold SAR in the IEEE standard (4 W/ kg) by a factor of 10 to provide an additional margin of safety for exposures in controlled environments such as occupational exposure inside fenced antenna sites. In other words, the FCC Guidelines for controlled environments cap exposure to RFR at 10% of the established threshold SAR. 25. In addition to the safety factor of 10, a further safety factor of 5, i.e., 2% of the established threshold SAR, was applied for an added margin of safety for exposures in uncontrolled environments, where exposure to the general public could occur. Thus, the FCC Guidelines for public, uncontrolled environments cap exposure to RFR to 2% of the established threshold SAR. ...

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57. FM radio transmitters have been in operation in various places around the country since at least the 1930s, and there is no epidemiologic data that proves that RFR causes cancer or other nonthermal health problems. 58. There are inherent difficulties in obtaining good scientific data on nonthermal health effects or the lack thereof. ... 71. While it appears that electromagnetic fields, including those in the RFR range, do have an effect on cell function, a causal link between RFR and cancer, or any other nonthermal health problem, has not been persuasively established. In short, there is no persuasive evidence that RFR can cause cancer or any other adverse nonthermal health effect.

7.7.4.2 Denver, CO: The Lake Cedar Group’s New HDTV Tower With the prospect of the 2009 conversion to digital TV, Denver television stations CBS4, 7News, 9News, and my20 Denver (then UPN 20) joined together to consolidate four broadcast towers into one. Denver was the last major metropolitan area in the United States not to have HDTV widely available. Here’s the story from the perspective of the stations involved: Limited HDTV was available from the Lake Cedar stations through low-powered antennas located in downtown Denver. Those digital signals were temporary and did not reach much of the immediate metro area, much less the rest of the Colorado Front Range. Transmissions from a downtown building were not a viable option for long-term digital format broadcasts. To reach the entire metro area as required by the FCC, the four television stations known as the Lake Cedar Group proposed a single tower to handle all four stations’ digital signals. This tower was designed to replace four existing towers on Lookout Mountain. It is shorter than the tallest tower it replaces. It will also be less visible against the mountain backdrop. After working for years with Jefferson County and Lookout Mountain neighbors, Lake Cedar Group was approved twice by the Jefferson County Commissioners to build a consolidated tower. But a new set of commissioners set back the clock by voting 2 to 1 against the Lake Cedar Group. To complicate matters more, the City of Golden, in an effort to stop the HDTV tower, went to court to condemn and seize the Lake Cedar Group property on Lookout Mountain where the proposed consolidated tower would be built. This property, and three others targeted by Golden, lay completely outside Golden city limits. Lake Cedar Group claimed that the eminent domain action would have cost Golden taxpayers millions of dollars.

Lake Cedar Group is part of The Grinnell Group, a real estate planning and development firm with offices in Denver (http://www.grinnellgroup.com/proj_lake_cedar.html). Lake Cedar Group was committed to continue its effort by working with local government officials, mainstream citizens, and, if necessary, the courts to resolve this issue. Their goal was to bring free over-the-air digital television to all of Denver as soon as possible. (See http://www.hdtvcolorado.com/content_pages/ overview_print.htm.)

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7.7.4.3 The Dedicated Opposition—CARE The proposed replacement tower on Lookout Mountain was opposed by a sophisticated and highly motivated group, Canyon Area Residents for the Environment (CARE) (http://www.c-a-r-e.org), led by Atty. Deb Carney. CARE’s position was that the tower should be built in someone else’s backyard (Squaw Mountain)—even though the existing towers had been on Lookout Mountain for more than 50 years. To accomplish their goals, CARE mounted a lobbying campaign, complete with flyers, letters to the editor, becoming friendly with local reporters, filing information and briefs, local meetings, and an additional website, http://www.hdtvhonestly.com. Their determination and completeness were admirable, especially given that it was a voluntary association. As an example of how effectively CARE presented information, look at Figure 7.12, a slide included in a Carney presentation on August 12, 2004.

CURRENT FCC PERMITS Over 20 million watts of Broadcast Radiation Effective Radiated Power (ERP) on Lookout Mountain 25000

KW of Power

20000

15000

10000

5000

19

50 19 52 19 54 19 56 19 58 19 60 19 62 19 64 19 66 19 68 19 70 19 72 19 74 19 76 19 78 19 80 19 82 19 84 19 86 19 88 19 90 19 92 19 94 19 96 19 98 20 00 20 02

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Figure 7.12 A slide used by CARE in opposition to the Lake Cedar Group’s proposed HDTV tower in Denver. (Source: www.c-a-r-e.org/pdfs/Deb%20Final%20Powerpoint.ppt.)

In the view of the broadcasters, CARE further stalled the consolidated tower by tying up the project in the courts at every opportunity. In addition to marshalling opposition at local hearings and litigating decisions, early on in the process (in 2000), CARE succeeded in getting the state legislature to adopt a bill urging the FCC not to preempt local attempts at regulating RF emissions. Here is the bill.

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SENATE Final Reading April 27, 2000 Second Regular Session Sixty-second General Assembly LLS NO. R00-1142.01 Kate Rooney STATE OF COLORADO BY SENATORS Sullivant, Congrove, Evans, and Teck; also REPRESENTATIVE Witwer. SENATE JOINT RESOLUTION 00-031 CONCERNING URGING THE FEDERAL COMMUNICATIONS COMMISSION TO REJECT LAKE CEDAR GROUP’S PETITION TO PREEMPT LOCAL GOVERNMENT LAND USE DECISIONMAKING AUTHORITY. WHEREAS, According to its comprehensive plan and its duly adopted zoning regulations, the Board of County Commissioners of Jefferson County, Colorado, denied an application by Lake Cedar Group, LLC, to rezone land on Lookout Mountain from residential and agricultural zoning to planned development zoning in order to allow construction of an 854-foot telecommunications supertower and a 26,000 square foot support building; and WHEREAS, Such decision was a quasi-adjudicative decision based on factual evidence presented to the Jefferson County Board of County Commissioners and application of applicable legal standards and as such can be appealed judicially to Jefferson County District Court, which court is fully empowered to grant full and appropriate relief to the appellant if appropriate under the facts of the case; and WHEREAS, Lake Cedar Group filed an appeal of Jefferson County’s decision in Jefferson County District Court, which appeal is now pending the filing of briefs by the parties; and WHEREAS, Despite the pending judicial appeal, and after Jefferson County spent several months preparing the voluminous record of proceedings for the Jefferson County District Court action, Lake Cedar Group, without notifying the Jefferson County Board of County Commissioners or any other interested party, filed a petition with the Federal Communications Commission (FCC) requesting the FCC to “preempt” Jefferson County’s decision and to declare Jefferson County’s decision “prohibited and unenforceable”; and WHEREAS, By Public Notice dated April 10, 2000, the FCC seeks public comment on Lake Cedar Group’s petition; and WHEREAS, In the United States, control over individual land use decisions is firmly vested in local governments, through statutory delegation from state governments; and WHEREAS, The FCC is barred by the 10th Amendment to the United States Constitution from attempting to preempt decisions made by local governments on individual land use applications because the United States Congress has not directed or authorized the FCC to preempt such local decisions; and WHEREAS, The FCC lacks not only the authority, but also the expertise and any adopted standards to second-guess and invalidate local government land use decisions; and

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WHEREAS, Any attempt by the FCC to preempt local government land use decision-making in this manner would represent an illegal, unauthorized, and unjustified attack on state- and localgovernment land use authority; now, therefore, Be It Resolved by the Senate of the Sixty-Second General Assembly of the State of Colorado, the House of Representatives concurring herein: That the General Assembly of the State of Colorado hereby encourages the FCC not to preempt local government land use decision-making and state judicial processes, thus overriding local and state government authority. Be It Further Resolved, That copies of this Joint Resolution be sent to the President of the United States Senate; the Speaker of the United States House of Representatives; each member of Colorado’s Congressional delegation; each member of the House of Representatives Subcommittee on Telecommunications, Trade and Consumer Protection of the Committee on Commerce; the Governor of Colorado; and the Commissioners of the Federal Communications Commission.

7.7.4.3.1 The Broadcasters Respond Attempting to retake the initiative, Lake Cedar Group eventually used the power of their own media. They created a website, http://www.hdtvcolorado.com, and also began to run 30-second spots on their TV stations. Apparently learning from CARE’s example that you can get the legislature involved, Lake Cedar Group went to the Congress. According to lobbying reports, Lake Cedar Group spent $200,000 in 2006 (see http://www.implu.com/ lobby_client/29086/2006; https://www.opensecrets.org/lobby/clientsum.php?lname⫽Lake⫹Cedar⫹ Group%2FGrinnell⫹Group&year⫽2007), hiring the Government Affairs Practice of what is now Wiley Rein LLP, of Washington, D.C., to lobby the Senate and House, as well as the FCC, for specific legislation that was cosponsored by both of Colorado’s Senators, Ken Salazar (Democrat) and Wayne Allard (Republican), and passed with the approval of the entire Colorado delegation in the House of Representatives. According to the Rocky Mountain News, it “was approved about 2:30 a.m. Dec. 8 as Congress was heading home for the holidays.” It was the last day of the session—and the bill was packaged with more than 30 others, all deemed “noncontroversial.” Sen. Salazar issued a statement saying that he backed the bill to “ensure that Colorado does not become a dark hole of digital broadcasting.” The Denver Post commented, “In just eight months, [Wiley Rein] accomplished what the stations had been unable to achieve in eight years.” Wiley Rein is justly proud of their efforts and covered the matter in the portion of their website called “In the News” (http://www. wileyrein.com/media_news.cfm?sp⫽news&ID⫽2261). To get a sense of how exquisite the lobbying was, here is the legislative history: ●

December 6, 2006—Introduced

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December 7, 2006—Message on Senate action sent to the House

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December 7, 2006—Received in the House

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December 7, 2006—Held at the desk

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December 9, 2006—Cleared for White House

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December 9, 2006—Passed without objection in the House (text, CR 12/8/2006 H9259)

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December 9, 2006—Considered by unanimous consent (consideration, CR 12/8/2006 H92589259)

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December 20, 2006—Presented to the President

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December 22, 2006—Signed

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December 22, 2006—Enacted and became Public Law No. 109-466

And now the text:

Page 120 STAT. 3484 Public Law 109-466 109th Congress An Act To clarify certain land use in Jefferson County, Colorado. ⬍⬍NOTE: Dec. 22, 2006—S. 4092⬎⬎ Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. CLARIFICATION OF CERTAIN LAND USE IN JEFFERSON COUNTY, COLORADO. Notwithstanding any applicable State or local land use or condemnation laws or regulations, and subject to all applicable Federal laws and regulations, any person that holds an approved Federal Communications Commission permit to construct or install either a digital television broadcast station antenna or tower, or both, located on Lookout Mountain in Jefferson County in the State of Colorado, may, at such location, construct, install, use, modify, replace, repair, or consolidate such antenna or tower, or both, and all accompanying facilities and services associated with such digital television broadcasts, if such antenna or tower is of the same height or lower than the tallest existing analog broadcast antenna or tower at such location. Approved December 22, 2006. LEGISLATIVE HISTORY—S. 4092: CONGRESSIONAL RECORD, Vol. 152 (2006): Dec. 6, considered and passed Senate. Dec. 8, considered and passed House.

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Though you might think this would have ended the matter, more litigation followed. On May 10–11, 2007, Carney—in her role as both Vice President of the EMR Policy Institute and attorney for CARE—went to Washington to brief about 15 Colorado congressional staff at the capitol (http://www. c-a-r-e.org/news_new3.htm). Presentations made included: Wireless and Broadcast Radiation Pollution: A U.S. Regulatory Issue Participants and Congressional Briefing Overview (http://www.c-a-r-e.org/pdfs/May 2007 Washington DC/Intro Sage Seymour.pdf) Electomagnetic Fields (EMF) and Health Risk: A Scientific Perspective, by Martin Blank, Ph.D., Columbia University (http://www.c-a-r-e.org/pdfs/May 2007 Washington DC/Blank DC-EMF.pdf) (Note: Blank was an expert witness in the WIZN-FM case in Vermont. A transcript of his cross examination is probably obtainable.) USFWS Concerns over Potential Radiation Impacts on Migratory Birds and Other Wildlife, by Albert M. Manville II, Ph.D., Senior Wildlife Biologist, Division of Migratory Bird Management, USFWS (http://www.c-a-r-e.org/pdfs/May 2007 Washington DC/Manville DC.pdf) Radiofrequency Radiation—Hidden Health and Environmental Effects, by B. Blake Levitt, Medical/ Science Author and Journalist, Former The New York Times writer (http://www.c-a-r-e.org/pdfs/ May 2007 Washington DC/Levitt PPT.pdf) We Are Unprotected: High-Powered TV & FM Broadcast Radiation on Lookout Mountain, by Deb Carney, Vice President, EMR Policy Institute, attorney for CARE (http://www.c-a-r-e.org/pdfs/ May 2007 Washington DC/Carney PPT.pdf) 7.7.4.3.2 Tolling If you are a broadcaster and you should be so unlucky as to get caught in one of these zoning quagmires, do not forget to request “tolling” of your construction permit (CP). Your CP gives you just so much time to construct or you lose the license; “tolling” stops the CP clock until the matter is resolved. The trick here, and nowhere else is this written down, is that you have to get into Court as soon as possible. To the casual observer, it may appear obvious that getting hung up before a Zoning Board would be a situation where “construction is prevented by . . . causes not under the control of the permittee” (47 CFR §73.3598(b)). Nonetheless, as you will see in the following well-written letter requesting tolling for one of the Lookout Mountain stations, “(t)he Commission has advised that tolling is appropriate when ‘construction is delayed by any cause of action pending before any court of competent jurisdiction relating to any necessary local, state, or federal requirements for the construction or operation of the station, including any zoning or environmental requirement’” (47 C.F.R. §73.3598(b)(ii)). The consequence of the FCC’s position on this matter is that, if the broadcaster agrees to more and more hearings, with time passing, opponents or a Board truly opposed to the project can try to run out the clock. Thus, the need for tolling. This will require some careful planning in conjunction with your attorneys. Do not allow the clock to keep running in the hope that you will eventually get your permit. The consequence may be that you have a local permit, but your CP has expired. To “unexpire” or

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reinvigorate a CP that has died of old age can be a daunting, perhaps impossible, task, although it has been done. An example of a letter requesting tolling, including a request to waive 47 CFR §73.3598(c), the rule requiring a permittee to notify the Commission within 30 days of the occurrence of a tolling event, comes from the public record in the Lookout Mountain situation and can be found on the CD as filename Tolling Request-Lookout Mountain.pdf. To give you an idea of what happens when a tolling request is submitted as a result of being in court (though in a much simpler case), see filename WYGG Tolling.pdf on the CD. This is a standard FCC response to an FM station request for tolling (again, defined as preventing the clock from running out, but this time on a Special Temporary Authorization, or STA). Note that the request for tolling in the WYGG-FM case was made on March 20, 2008, but not granted until October 17, 2008, 7 months later. While a request for tolling can be filed by a lawyer for the station or by a member of station management (including an engineer), if you ever find yourself in a situation where you have applied for tolling and the CP or STA expires before you have received a letter back from the FCC granting the request for tolling, you have a problem that should probably be handled by a communications lawyer, not station management or an engineer. This situation becomes most frightening when you are trying to transfer the license (sell the station) during the process, and you have neither an outcome on the zoning process nor a response to the tolling request. Consult a lawyer. 7.7.4.4 NorthSound 1380 (KRKO-AM), Snohomish County, WA This story is most easily told by simply repeating elements of the FCC’s Finding of “No Significant Impact,” dated May 30, 2008, by Peter H. Doyle, Chief, Audio Division, Media Bureau (footnotes omitted). The reader interested in seeing all the footnotes may find the complete decision, with footnotes, on the accompanying CD, filename KRKO-AM FCC FONSI.doc. The complete text of the decision, as issued, may also be found at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-081272A1.doc.

Federal Communications Commission Washington, D.C. 20554 May 30, 2008 DA 08-1272 In Reply Refer to: 1800B3-MFW Released: May 30, 2008 Mr. Andrew Skotdal, President S-R Broadcasting Co., Inc. 2707 Colby Avenue, Suite 1380 Everett, Washington 98201

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KRKO(AM), Everett, WA Facility ID No. 62056 Application No. BP-20000308ABU Finding of No Significant Impact Informal Objections Dear Mr. Skotdal: This letter concerns the referenced application, as amended (the “Application”), of S-R Broadcasting Co., Inc. (“S-R” or the “Licensee”) for minor modification of the facilities of Station KRKO(AM), Everett, Washington. Additionally, we have before us numerous objections to the proposal filed by area residents. For the reasons set forth below, we find that the S-R proposal will have no significant impact on the quality of the human environment, we deny the objections, and we grant the Application. Background. On March 8, 2000, S-R filed the Application, seeking to relocate KRKO(AM)’s facilities to a new site. As initially filed, the Application proposed increasing power from 5 kW to 50 kW unlimited time, utilizing four towers for its nighttime directional antenna array, two of which also would be used for its daytime directional antenna operation. The technical proposal in the Application was subsequently amended several times, most recently to specify a daytime power of 34 kW and a nighttime power of 50 kW; the amended application specifies a 106.4meter tower for KRKO(AM)’s nondirectional daytime operation and four towers (including the 106.4-meter daytime tower) for KRKO(AM)’s directional nighttime operation. From January of 2001 through April of 2002, we received numerous objections to the KRKO(AM) proposal from local residents, based on their concerns about the deleterious environmental effects of the planned KRKO(AM) towers. Most of these objections concerned the possible effects of the KRKO(AM) proposal on migratory birds, endangered species, and bald eagles. Two objectors complain that construction of the towers will lower their real estate values, and one objector observes that the application for conditional use permit filed with the Snohomish County government did not match the application filed with the Commission. One objection, subsequently withdrawn, expressed concern about the proximity of the proposed KRKO(AM) towers to the Harvey Airfield a private, “FAA-designated general aviation reliever airport.” Because the Application proposed to construct the KRKO(AM) towers in a flood plain, the Staff requested S-R to submit an environmental assessment (“EA”) pursuant to Section 1.1307(a)(6) of the Commission’s Rules (the “Rules”). The EA was to contain the information specified in Section 1.1311 of the Rules, and it was to address each of the factors set forth in Section 1.1307 of the rules to support the Licensee’s contention that the project is categorically excluded from environmental processing. S-R submitted the EA, prepared by LSI Adapt, Inc., on August 17, 2001. In an amendment to the EA filed on July 13, 2007, at the request of the Media Bureau Staff (the “Staff ”), S-R indicates that the representations made when the EA was filed in 2001 apply equally to the KRKO(AM) modification application as most recently amended. The Bureau released a Public Notice announcing the acceptance of the EA on July 25, 2007, providing a 30-day period to comment on the EA. The EA indicated that S-R was proposing to construct up to seven towers below 200 feet above ground level (“AGL”) and one 425-foot tower (exclusive of the 16-foot foundation needed to elevate the structure out of the reach of flood waters). The towers were to be self-supported/ freestanding towers without guy wires. In an amendment to the EA filed on July 13, 2007, S-R indicates that although the EA contemplated up to seven towers below 200 feet and one tower

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of 425 feet (tower number 4), only four towers were actually to be used by Station KRKO(AM). Additionally, although the Application was again amended on November 11, 2004, to reflect a reduction in the height of tower number 4 from 425 feet to 349 feet, S-R represents that “the information (including the Attachments), the conclusions, and the ‘Finding of No Significant Impact’ rendered in connection with the EA eight-tower project description … are equally applicable to the proposal set forth in the amended KRKO FCC application.” We received no timely comments on the EA specifically in response to the Public Notice although, commencing in March of 2007, we began to receive additional letters from local residents objecting to construction of KRKO(AM)’s modified facilities in the Snohomish Valley. These letters have continued through April of 2008. The majority of these letters object to the KRKO(AM) towers on aesthetic and “appropriate land use” grounds, concerns over effects on birds and other wildlife, and/or concern over the effects of the tower on local property values. However, several letters express concern that construction of the KRKO(AM) facilities had begun prior to issuance of a construction permit for those facilities, and several other letter express concern regarding the perceived unhealthy exposure of local residents to radiofrequency (“RF”) radiation from KRKO(AM)’s facilities. Several of these letters question whether the Commission’s RF exposure limits are satisfactory. Finally, one letter raises concerns about both the alleged “health risks” of the KRKO(AM) proposal to nearby residents and schoolchildren and indicates that, due to the location of the towers in a flood plain and the fact that “dirt fill and concrete [tower] bases are required, flood water will impact other areas of the [Snohomish River] valley. More recently, one objector invokes the Endangered Species Act in arguing that the radiofrequency radiation emanating from the proposed KRKO(AM) tower will adversely affect migrating salmon and may adversely affect birds that reside in or migrate through the Snohomish River valley. The Stewards of Snohomish reference a recent decision by the Court of Appeals for the District of Columbia Circuit which, they state, criticized the Commission for failing to sufficiently involve the public in its tower approval process and for refusing to consult with the United States Fish and Wildlife Service when approving such towers. Discussion. Pursuant to Section 309(e) of the Communications Act of 1934, as amended (the “Act”), informal objections must provide properly supported allegations of fact that, if true, would establish a substantial and material question of fact that grant of the application would be prima facie inconsistent with the public interest, convenience, and necessity. For the reasons discussed below, the objectors and others filing comments in this proceeding do not carry that burden. Under the Commission’s Rules implementing the National Environmental Policy Act of 1969, as amended, (“NEPA”), licensees, permittees and applicants (collectively, “Licensees”) are required to assess proposed facilities to determine whether the facilities may significantly affect the environment, as defined in Section 1.1307 of the Rules. For actions that may have significant environmental effects, Licensees must prepare and submit to the Commission an EA and undergo environmental review and any mandatory consultation with expert agencies, prior to initiating construction. The Bureau or Commission conducts an independent review of the EA to determine whether the proposed construction would have a significant impact on the human environment. If the Commission or staff finds, after reviewing an EA and any comments received, that a proposed facility will not have a significant environmental effect, it will issue a Finding of No Significant Impact (“FONSI”) and grant the application. If the Commission finds that a proposed action will have a significant environmental effect and the applicant does not choose to amend its application, Licensees may not commence construction until the Commission concludes further environmental processing, including the preparation of environmental impact statements (“EISs”).

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The EA and Subsequent Information. According to the EA, the KRKO(AM) antenna towers will be located at the southwest corner of the intersection of 132nd Street, S.E. and Shorts School River Road in Snohomish. The area is described as “rural in nature, and comprised primarily of agricultural fields.” All towers will be self-supported, freestanding towers without guy wires, and the towers and equipment building will be on a 16-foot foundation to elevate the structures out of possible flood waters. The EA indicates that all proposed development activities will occur more than 300 feet from any wetlands and streams and will be physically separated from these areas by an earthen dike. There will be a ground system consisting of 120 copper wires, each roughly 1/16 of an inch thick, extending 200 feet from the central base of each tower in a “bicycle spoke pattern;” these will be buried approximately 18 inches deep and will likely be “planted” by a small farm tractor pulling a spool of copper wire, feeding it in behind the plow. With respect to the specific factors set forth in Section 1.1307, the EA contains the following information and documentation: Officially Designated Wilderness Area (Section 1.1307(a)(1)): The EA states, and no parties disagree, that the proposed KRKO(AM) tower site does not lie within the boundaries of an officially designated wilderness area. Officially Designated Wildlife Preserve (Section 1.1307(a)(2)): The EA states, and no parties disagree, that the proposed KRKO(AM) tower site does not lie within the boundaries of an officially designated wildlife preserve. Endangered Species or Designated Critical Habitats (Section 1.1307(a)(3)): The EA indicates that LSI Adapt sought and received information from the Washington State Department of Fish & Wildlife, the United States Department of Fish & Wildlife (“USFWS”), the National Marine Fisheries Service, and the Federal Register, yielding the following state and federal list of threatened species in the vicinity of the site: ●

Bald Eagle (Haliaeetus leucocephalus), threatened (and ultimately delisted)

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Marbled Murrelet (Brachyramphus marmoratus), threatened

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Bull Trout (Salvelinus confluentus), threatened

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Dolly Varden (Salvelinus malma), threatened

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Chinook Salmon (Oncorhynchus tshawytscha), threatened

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Coho Salmon (Oncorhynchus kisutch), candidate for listing as threatened.

Additionally, the EA addresses concerns raised by interested parties about possible impacts to other migratory birds. To assess the impact of the proposed KRKO(AM) towers on the listed species and migratory birds, the EA contains a Biological Assessment (“BA”) prepared by Derek Marks and William Railton of Wetland Resources, Inc. on March 22, 2001, and an Avian Risk Assessment (“ARA”) prepared by Dr. Paul Kerlinger of Curry & Kerlinger, LLC. The BA concludes that there will be “No Effect” on any listed species identified as potentially occurring in the vicinity of the site. The ARA—including as it did at the time seven towers less than 200 feet in height and one tower 425 feet in height, all self supporting—concludes that by amending the proposal to decrease the tower height of seven towers and eliminating the use of guy wires, S-R had “eliminated virtually all risk to birds.”

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The applicant ultimately submitted the BA and the ARA to the USFWS for its concurrence. By letter dated April 11, 2007, USFWS (1) informed S-R’s local counsel it did not need to seek USFWS concurrence for the “no effect” finding; and (2) stated that, while finding that some birds will likely be killed by colliding with the tower over the life of the station and that the Migratory Bird Treaty Act does not provide for permitting of “incidental take” of migratory birds, “the [USFWS] recognizes that some birds may be killed at structures such as radio towers even if all reasonable measures to avoid it are implemented.” USFWS continued that although it is not possible to absolve individuals, companies, or agencies from liability even if they follow recommended siting guidelines, the USFWS’ Office of Law Enforcement and the Department of Justice have used enforcement and prosecutorial discretion regarding individuals, companies, and agencies who have made good-faith efforts to avoid the incidental take of migratory birds. USFWS required S-R to report any incidents or migratory bird “takings,” and ultimately it “commends” S-R for redesigning the proposed towers to conform more closely to USFWS siting guidelines. Districts, Sites, Buildings, Structures or Objects Significant in American History, Architecture, Archaeology, Engineering, or Culture that Are Listed or Eligible for Listing in the National Register of Historic Places (Section 1.1307(a)(4)): The EA indicates that, because the proposed KRKO(AM) towers will be constructed near an urban area (the City of Snohomish) with buildings constructed more than 50 years ago, the Washington Department of Community, Trade, and Economic Development’s (“WDCTED”) Office of Archaeology and Historic Preservation (“OAHP”) requested that a Preservation Professional conduct a file review and field survey of the site and surrounding area. LSI Adapt contacted Dr. Caroline Galacci to conduct the review. She concluded that the construction and operation of the proposed antenna will not affect districts, sites, buildings, structures, or objects listed in, or eligible for listing in, the National Register of Historic Places. On May 14, 2001, Dr. Galacci submitted a “no effect” opinion letter to the Washington OAHP, which provided a written concurrence letter on May 21, 2001 for the four-tower configuration and an additional concurrence letter on July 9, 2001, for the possible four future towers. Indian Religious Sites (Section 1.1307(a)(5)): The EA indicates that, because the proposed KRKO(AM) towers may be located near Native American religious sites, WDCTED and OAHP requested that a Preservation Professional conduct a field review, field survey, and a letter of inquiry to any Native American tribes owning land in the are of the proposed facility and surrounding area for possible eligible religious sites. Dr. Galacci’s review of the literature and record search indicated that the construction and operation of the proposed antenna would not affect any federally recognized Native American religious sites. Subsequently, at the request of the Staff, S-R supplemented its outreach to tribes that might be interested in the KRKO(AM) tower site area using the Commission’s Tower Construction Notification System (“TCNS”). S-R initiated the notification on October 24, 2007. TCNS identified nine tribes with an interest in the property: Muckleshoot, Sauk Suiattle, Stillaguamish, Suquamish, Tulalip, Yakama Nation, Coeur d’Alene, Snoqualmie, and Seattle. Of those nine tribes: ●

Four (Sauk Suiattle, Tulalip, Yakama Nation, and Snoqualmie) established response parameters in TCNS that if there is no tribal response within 30 days after notification, the Tribe has no interest in participating in pre-construction review and requests notification only if archaeological artifacts or remains are found on-site during or after construction. These Tribes did not respond within 30 days, and S-R pledged to provide notification to them following issuance of a construction permit by the Commission and if any archaeological items are found on site;

●

The Suquamish Tribe indicated that it deferred to the wishes of the Tulalip and Snoqualmie Tribes listed above; S-R states that it interprets that response to mean that the Suquamish Tribe has no interest in pre-construction review;

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●

The Coeur d’Alene Tribe indicated “no interest”;

●

The Muckleshoot Tribe indicated “no comment at this time,” and no further response has been received;

●

The Spokane Tribe indicated “no interest”; and

●

The Stillaguamish Tribe indicated “no cultural concerns at this time” and submitted no further responses.

TCNS notification was also provided to the OAHP, which submitted no response. Flood Plain (Section 1.1307(a)(6)): The EA indicates that the proposed KRKO(AM) tower site is in a 100-year floodplain and must comply with all applicable local Snohomish County Master Planning guidelines for commercial construction in a floodplain. The EA indicates that an equipment platform, approximately 12 feet x 10 feet, will be situated at the base of each antenna and will be elevated 16 feet above ground level. A prefabricated equipment building measuring 24 feet x 36 feet will be placed on its own platform, also 16 feet above ground level. These platforms are designed to keep the equipment above the 100-year flood levels. Ultimately, after the hearings and litigation described in Note 8 above, on April 6, 2007, the Snohomish County Department of Planning and Development Resources issued to S-R all requisite conditional use permits for completing construction in a flood plain. Additionally, S-R received an Elevation Certificate from the National Flood Insurance Program, Federal Emergency Management Agency, United States Department of Homeland Security. Change in Surface Features (Wetland Fill, Deforestation, Water Diversion, etc.) (Section 1.1307(a)(7): The EA indicates that the proposed KRKO(AM) towers will have no effect on any wetlands. With respect to the specific information that is to be included in an EA pursuant to Section 1.1311 of the Rules, the EA submitted by S-R describes the tower, supporting structures, and construction methodology, as well as the surrounding area and uses. The site is zoned “A-10” and the proposed use as a radio tower site is consistent with applicable zoning code requirements. It is not in a residential area. Additionally, S-R has described and thoroughly documented the proceedings undertaken to secure local zoning approval, ultimately receiving all the necessary permits from state and local authorities. Section 1.1311(a)(3): Local Controversy: The EA acknowledges that, as originally proposed, the project was a source of local controversy on environmental grounds, as individuals, organizations, and federal and state agencies filed over 100 letters and comments on the proposal for guyed towers. The commenters expressed concern about protected species, migratory birds, aesthetics, recreational opportunities, and radiofrequency (“RF”) interference. The EA states that the configuration of the antennas has been significantly changed in response to the comments. It appears that the proposal remains a source of local controversy on environmental grounds, as evidenced by the appeals taken of the local land use authorities’ decision to grant permits for the modified KRKO(AM) facilities and by the letters and comments that have been continuously submitted in response to the amended proposal. Opposition to a project does not establish that a project is controversial and that it will have a significant environmental impact. Controversy regarding an issue that is relevant to the existence of a significant environmental impact may be a factor in favor of preparing an Environmental Impact Statement, but mere opposition in the absence of such a legitimate issue is not.

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Section 1.1311(a)(4): Environmental and Other Considerations Leading to Selection of Proposed Site. The EA also contains an extensive discussion of the site selection process, and alternatives considered, including a “No Action Alternative” under which KRKO(AM) would continue to operate with its presently licensed facilities. The EA indicates that the availability of alternate sites was limited due to (1) the Commission’s medium-wave interference spacing requirements for AM stations; (2) the Commission requirement that the station’s community of license be provided with at least a 5 mV/m daytime and nighttime signal contour; (3) Commission regulations designed to encourage transmitter sites to be located in rural areas, away from concentrated population areas; (4) the limited real estate market for sites with appropriately sized parcels of land with suitable signal propagation characteristics; (5) Snohomish County zoning requirements; and (6) the Harvey Field, a local airfield which must be protected under Federal Aviation Administration Regulations. The EA indicates that, utilizing a matrix of siteselection criteria, S-R was able to identify six site alternatives; each but the current proposal was rejected for a variety of reasons. ●

The “No Action Alternative” was rejected because it prevented KRKO(AM) from achieving its expanded signal transmission goals and would stall the station’s transition to digital broadcasting and “limit the level of emergency broadcast services available to remote areas located in Snohomish and Island Counties”;

●

The “Shorts River Road Site” (original proposed antenna configuration) “generally met” all site selection criteria, but was rejected because the original antenna configuration type and size might have increased the potential for visual and possible migratory bird impacts;

●

The “Larimer Road Site” (the current KRKO(AM) transmitter site) was rejected because “it is not large enough to install a four-tower directional array and is too far north to allow KRKO to cover South Snohomish County at night”;

●

The licensed site for the nighttime facilities for station KCIS(AM), Edmonds, Washington, was rejected because the existing towers are not oriented in a manner that would facilitate a nighttime directional signal for KRKO(AM) and because the site does not have enough area for additional towers;

●

The “Tualco Valley Site,” along Crescent Lake Road north of the Snoqualmie River was rejected because of the low ground conductivity in the direction of Everett, Washington KRKO(AM)’s community of license;

Therefore, the EA indicates, S-R chose a reconfigured antenna system at the Shorts School River Road site because it met S-R’s most important selection criteria and was perceived to “significantly reduce” the possibility of visual and environmental impacts in the subject site area. It utilizes self-supported latticework towers, replacing the originally proposed guyed towers, and significantly reduced antenna heights. The EA indicates that if this site proceeds as proposed, it will allow for the “decommissioning” of the two 225-foot guyed towers currently used by KRKO(AM) at the Larimer Road site. The EA observes that the site has excellent conductivity, which allows full coverage of Everett and southern Snohomish county, and it states that the rural nature of the site is ideally suited for the construction of the towers because of the lower population density in the vicinity of the transmitter, the size of the property available, and the ease of property development. Comments/Objections to EA. Although we received no timely comments in response to the Public Notice announcing the acceptance for filing of the EA for KRKO(AM)’s modified facilities, we received comments challenging the EA from the group Snohomish Citizens, through counsel,

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on October 4, 2007. Previously, on September 13, 2007, the President of Snohomish Citizens requested an extension of time to comment on the EA. We think it inappropriate to extend formally the comment period for the EA given the fact that Snohomish Citizens had actual notice of the EA and the length of time which Snohomish Citizens has already had to comment on the EA even prior to release of the Public Notice. Nevertheless, we believe that consideration of these comments will be beneficial to obtaining a thorough review of the environmental effect of the proposed KRKO(AM) modification. In their October 4 Comments, Snohomish Citizens argue that the EA is incomplete, outdated, and does not address significant environmental impacts that should be addressed in a full EIS. In these comments, Snohomish Citizens initially describes the area, the surrounding properties, and the uses made of the surrounding properties. It then reprints selected comments from the Snohomish County Parks Department on the potential environmental effects of the KRKO(AM) towers, both from internal Parks Department memoranda and in comments filed upon S-R’s draft EIS in the Washington state zoning approval process, expressing concerns about the “visual appeal” and the “scenic viewing opportunities” in the picturesque rural Snohomish River floodplain. It observes that the upper Snohomish River Valley is part of a major migratory bird route in the spring, specifically mentioning trumpeter swans and ducks (including mallards and American Wigeons). The Licensee filed a response to this submission on October 12, 2007. Conclusions Regarding EA and Objections. Upon examination of the EA and supplemental materials, we find that the information supplied satisfies the requirements specified in Sections 1.1307 and 1.1311 of the Rules. Initially, we reject the contention of Snohomish Citizens that the EA is incomplete, outdated, and insufficient. Although the EA was originally prepared in 2001, there is no evidence in the record that the information submitted has become stale or outdated, and S-R has certified that the representations in the original EA apply with equal validity to the most recent amendment to the KRKO(AM) proposal. Furthermore, as discussed in detail above, the EA was supplemented recently with probative evidence regarding, among other things, the lack of significant effect of the proposed KRKO(AM) towers on migratory birds and the lack of concern about the towers expressed by Indian tribes with an interest in the tower site area. The information before us is more than adequate to make a reasoned determination of the effects of the KRKO(AM) towers on the quality of the human environment. Endangered Species/Migratory Birds. With respect to the specific criteria referenced by the objectors, first involving the purported effects of the KRKO(AM) towers on avian species under Section 1.1307(a)(3) of the Rules, the EA and supplemental materials clearly explain the basis for the applicant’s determination that there are no listed or proposed threatened or endangered species or designated or proposed critical habitats within the project’s action area and that there would be no effect on listed or proposed threatened or endangered species or designated or proposed critical habitats within the project’s action area. It has provided the materials (with citations) that formed the basis for this determination, including a letter from the USFWS databases so indicating. Additionally, with respect to the effect of the KRKO(AM) towers on migratory birds, USFWS has commended the Applicant for redesigning its antenna system to take into account USFWS guidelines and required it to report any “takings” of migratory birds at the tower site. Nothing further is required of S-R on this matter at this time. Floodplain. With respect to the location of the KRKO(AM) towers in a floodplain, S-R has provided a copy of the building permit from the local jurisdiction where the proposed antenna structure will be located that shows the proposed structure is above the flood plain. It also has provided a copy of an Elevation Certificate issued to it by the National Flood Insurance Program, Federal Emergency Management Agency, United States Department of Homeland Security.

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RF Radiation Exposure. With respect to various objectors’ concerns regarding the perceived unhealthy exposure of local residents to RF radiation from KRKO(AM)’s facilities and their concomitant concern that the Commission’s RF exposure rules do not provide adequate protection, we observe first that S-R’s engineering consultants have established that KRKO(AM)’s proposal complies with the RF radiation exposure limitations contained in Sections 1.1307(b) and 1.1310 of the Rules with the following provisos. S-R will be required to erect a protective fence around the transmission facility and install appropriate warning signs. Additionally, the construction permit will contain a condition requiring S-R to take actual radiation measurements which will be submitted to the Commission to ensure compliance with the RF exposure limitations. Moreover, we reject the objectors’ contention that the Commission’s RF exposure guidelines provide insufficient protection to members of the general public. The Commission’s current environmental rules were first established in 1985, pursuant to a notice and comment rulemaking proceeding. The current, more restrictive, guidelines were finalized in 1997, based on the recommendations and advice of federal agencies and groups with expertise in healthrelated areas and in standards setting. More recently, the Commission updated its procedures for measuring RF exposure from mobile and portable devices. These procedures are based on the work and recommendations of an expert group of the Institute of Electrical and Electronics Engineers (IEEE). We are not persuaded by the submission of two studies—one of which is of dubious relevance—that the Commission’s RF exposure standards are incorrect or inadequate. To the extent that the objectors believe that recent studies indicate that there are more significant effects of long-term low-level exposure to RF radiation from broadcast facilities, these suggestions are more appropriately raised in a petition for rulemaking with the Commission pursuant to Section 1.401 of the Rules or with other expert agencies upon which the Commission relies rather than in a fact-specific adjudicatory proceeding such as this. The institution of a notice-and-comment rulemaking under the Administrative Procedure Act, if warranted, would allow for the development of a complete record on which the Commission could make an informed determination regarding the sufficiency of its RF radiation exposure rules. Other Matters. Effects on local property values. Several commenters express concern over the perceived effect of the KRKO(AM) towers on property values in the area. While we understand their misgivings, concern over property values is not an environmental factor considered by the Commission in reviewing proposals for broadcast facilities. Moreover, the environmental statutes governing the Commission’s obligations do not require federal agencies to consider socioeconomic factors, such as diminished property values, where the record establishes that the threshold requirement for environmental analysis—impact on the environment—has not been met. Aesthetic concerns. Several commenters express their concern that the erection of the four KRKO(AM) towers in the Snohomish River valley will despoil the pristine, bucolic landscape that residents have long enjoyed. The Commission, in amending its environmental rules in 1986, observed that [A]esthetic concerns may more appropriately be resolved by local, state, regional or local land use authorities. Those authorities can better handle such questions given their experience and familiarity with land use values. Accordingly, in considering any objections based upon aesthetic concerns, due recognition and considerable weight will be accorded to the fact that site approval has been obtained from a local, state, regional or federal land use board or agency, if that approval has taken into account the environmental impact of the proposal.

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It is clear from the record in the local zoning approval process that the Snohomish County and Washington State authorities have carefully reviewed the environmental impact of S-R’s proposal before issuing the requisite permits. We therefore defer to those authorities on the issue of the aesthetic impact of the KRKO(AM) towers. Proximity to Harvey Airfield. By letter dated April 3, 2001, the owner of the Harvey Airfield expressed concern about the proximity of the proposed KRKO(AM) towers to that private airport. Harvey Airfield officially withdrew its objection on April 18, 2002, because S-R had agreed to lower the height of the towers and there was no evidence that the towers would negatively impact aircraft radio or navigation equipment operations or instrument procedure guidance systems. Even where a petition or objection is dismissed at the filing party’s request, however, the Commission considers the merits of that submission. The staff has coordinated with the Federal Aviation Administration (“FAA”) during the process of registering the KRKO(AM) towers, and the FAA has issued a “No Hazard” determination. No further discussion is warranted on this matter. Cumulative effects of KRKO(AM) and the CAAM. Several objectors argue that the Commission must consider the cumulative effects of the KRKO(AM) proposal and the subsequent CAAM Application. The CAAM Application proposes the same site as the KRKO proposal, sharing two towers and proposing two additional towers. S-R counters that the cumulative impact of all the towers involved in the KRKO(AM) and CAAM Applications is not relevant to the Commission’s determination of the matter before the staff here, viz., whether the KRKO(AM) modification application should be granted. It acknowledges that cumulative impact is a relevant consideration and should be a factor in determining whether the CAAM application should be granted; it states that if the CAAM Application is not granted, for whatever reason, there will be no cumulative impact. Objector Dold counters that NEPA has very clear requirements regarding the identification and evaluation of cumulative impacts caused by connected, cumulative, and/or similar proposals. There is no credible argument, she states, that S-R and CAAM’s joint use of the same radio antennas at the same site could not be considered connected, cumulative, or similar actions, and that the failure to consider the cumulative impact of both proposals would violate NEPA. We find that we need not study the cumulative environmental effects of the KRKO(AM) and CAAM Applications at this time. As observed by S-R, if the CAAM application is not grantable, the additional towers will not be built, and there will be no “cumulative effect” added by those additional towers. Nevertheless, we will direct CAAM, when it ultimately files an EA for the CAAM Application, to include in the EA a specific discussion regarding the cumulative effect of all the towers at the site on with respect to each of the environmental factors set forth in Section 1.1307(a) of the Rules. Premature Construction. A number of objectors have expressed concerns that, during the late summer and fall of 2007, S-R commenced construction of the KRKO(AM) facilities prior to grant of the Application. Several objectors enclosed pictures, purportedly taken at the proposed KRKO(AM) site, which show a crane and pile driver. In its September 5, 2007, response, S-R indicates that the construction underway at that time consisted of survey work, temporary roads, installation of 62 steel piles (to a depth of 40 to 50 feet and extending approximately six inches above the soil in foundation holes) for antenna tower and storage shelter foundations and the utilization of batter boards in preparation for the pouring of cement. Section 319(a) of the Act states, in pertinent part, that “[n]o license shall be issued under the Authority of this Act for the operation of any station unless a permit for its construction has

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been granted by the Commission.” Section 319 was enacted to ensure that applicants do not use incurred expenses as a means of exerting improper pressure upon the Commission to grant an application. That section forecloses the Commission from issuing a license for the operation of any station that has been constructed prior to the grant of a construction permit. However, the Commission has held that its prohibition on premature construction of a broadcast station is not absolute. For instance, the Commission has sanctioned certain types of pre-authorization construction, including site clearance, pouring of concrete footings for a tower, installation of a tower base and anchors, installation of a new power line, purchase and on-site storage (but not installation) of radio equipment and other preliminary steps having no intrinsic broadcast use. Pre-authorization construction of towers or installation of radio antennas has been strictly prohibited. We find that S-R’s installation of tower foundation supports, temporary roads, “batter boards,” “rebar,” and empty conduit constitute preliminary activities having no intrinsic radio communication use related to the proposed facility, and thus are not premature or unauthorized construction activities. Conclusion/Actions. Upon examination of the EA, we find that the information supplied satisfies the requirements specified in Section 1.1311 of the Rules. Additionally, pursuant to Section 1.1308 of the Rules, we find that the KRKO(AM) tower array will have no significant environmental impact on the quality of the human environment, and no further environmental processing is warranted. Moreover, we have examined the captioned application and find that it complies with all pertinent statutory and regulatory requirements. Accordingly, in light of the findings made above, IT IS ORDERED, that the Informal Objections filed by the individuals and entities listed above ARE DENIED, and the application (File No. BP20000308ABU) of S-R Broadcasting Co., Inc. for minor modification of the facilities of Station KRKO(AM), Everett, Washington, IS GRANTED. Sincerely, Peter H. Doyle Chief, Audio Division Media Bureau cc: Robert Jacobi, Esq. (Counsel for the Licensee) Citizens to Preserve the Upper Snohomish River Valley Jennifer A. Dold, Esq. (Counsel for Citizens to Preserve the Upper Snohomish River Valley) CAAM Partnership, LLC Individual Objectors (see Appendix)

7.7.4.4.1 Lessons to Be Learned from this FONSI If you are an engineer and the decision above (the FONSI) makes your eyes glaze over, keep your day job5 and leave the application and argument, when based on such detailed law, to the 5

If you are the engineer for an AM daytimer, keep your night job. (For readers who do not get this joke, “AM daytimers” are stations that operate at high power during the day and low power at night to avoid skip (skywave) interference with other stations sharing the same frequency. As a result, maintenance is done at night because there are far fewer listeners to be disturbed if the station is taken off the air.)

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professionals. Do not try this at home, boys and girls. You can rely on the fact that any and every complaint possible will be launched against an application when the opponents are ably represented (as they were here).You also can rely on the fact that improbable, outlandish, and false claims will be launched against you by members of the public who don’t know what they are talking about. But the FCC (and other bodies) will take those complaints seriously, so you’d better have a passionless, solid response. There are some really nice findings, such as the following: ●

●

Opposition to a project does not establish that a project is controversial and that it will have a significant environmental impact. Controversy regarding an issue that is relevant to the existence of a significant environmental impact may be a factor in favor of preparing an Environmental Impact Statement, but mere opposition in the absence of such a legitimate issue is not. The FCC found that a study suggesting danger from RF exposure was of “dubious relevance.” This phrase was amplified in footnote 89:

The 2002 research done near Rome, Italy, involved studying Vatican Radio, a powerful station located in a northern suburb of Rome. Vatican Radio operates with three rotating and 28 fixed antennas in an area 2 km north–south by 1.5 km east–west. The antennas broadcast on different wavelengths at from 5 to 600 kW of power. There is no correlation between Vatican Radio and the proposed KRKO(AM)—or any other domestic AM—facility. Additionally, the abstract of the article itself acknowledges: Although the study adds evidence of an excess of leukemia in a population living near highpower radio transmitters, no causal implication can be drawn. There is still insufficient scientific knowledge, and new epidemiologic studies are needed to clarify a possible leukemogenic effect of residential exposure to radiofrequency radiation. Source: Am J Epidemiol 2002 at 155:1096.

●

As stated in the FONSI above, “[T]he environmental statutes governing the Commission’s obligations do not require federal agencies to consider socioeconomic factors, such as diminished property values, where the record establishes that the threshold requirement for environmental analysis—impact on the environment—has not been met.”

7.7.5 Association Is Not Causality—Lessons from Statistics Now that we have given some serious thought to the question of radiation and emissions safety, you must become emotionally prepared to face the charge that you may be harming innocents. To aid your preparation, please consider this piece of Internet humor (author unknown) designed to make the very serious point that “association is not causality.” Never forget that point.

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Bread Statistics 1. More than 98% of convicted felons are bread users. 2. Fully half of all children who grow up in bread-consuming households score below average on standardized tests. 3. In the 18th century, when virtually all bread was baked in the home, the average life expectancy was less than 50 years, infant mortality rates were unacceptably high, many women died in childbirth; and diseases such as typhoid, yellow fever, and influenza ravaged whole nations. 4. More than 90% of violent crimes are committed within 24 hours of eating bread. 5. Bread is made from a substance called “dough.” It has been proven that as little as one pound of dough can be used to suffocate a mouse. The average American eats more bread than that in 1 month! 6. Primitive tribal societies that have no bread exhibit a low incidence of cancer, Alzheimer’s, Parkinson’s disease, and osteoporosis. 7. Bread has been proven to be addictive. Subjects deprived of bread and given only water to eat begged for bread after as little as 2 days. 8. Bread is often a “gateway” food item, leading the user to “harder” items such as butter, jelly, peanut butter, and even cold cuts. 9. Bread has been proven to absorb water. Since the human body is more than 90% water, it follows that eating bread could lead to your body being taken over by this absorptive food product, turning you into a soggy, gooey, bread-pudding person. 10. Newborn babies can choke on bread. 11. Bread is baked at temperatures as high as 400° Fahrenheit! That kind of heat can kill an adult in less than one minute. 12. Most American bread eaters are utterly unable to distinguish between significant scientific fact and meaningless statistical babbling. In light of these frightening statistics, we propose the following bread restrictions: 1. No sale of bread to minors 2. A nationwide “Just Say No to Toast” campaign, with complete celebrity TV spots and bumper stickers 3. A 300% federal tax on all bread to pay for all the societal ills we might associate with bread 4. No use of animal or human images, nor any primary colors (which may appeal to children), to promote bread usage 5. Establishment of “bread-free” zones around schools

7.8 Lightning The thought that an antenna-support structure might present a danger by attracting lightning is usually presented to a Board of Appeals in the form of a question: “Won’t this attract lightning?”

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or “Will this attract lightning?” In the midst of an otherwise vicious and mean-spirited attack on your proposal to erect an antenna-support structure, it is easy to think that almost any remark is also vicious and mean spirited. Nonetheless, in my experience, this question is most often posed by someone who did not grow up on a farm and who knows nothing about lightning. Should this question arise, do not snap at the questioner. It could well be a totally innocent question. Fortunately, it is easily answered.

7.8.1 “The Cone of Protection” The most effective way to answer the question is to bring along a graphic, available on the CD as filename Cone of Protection.pdf. It is also reproduced here in Figure 7.13. Basically, the “cone of protection” principle states that objects within a cone defined by a 45° down angle from the highest grounded thing in the area are protected because lightning will tend to seek the easiest path to ground.

Antennas on mast θ

θ

Antennasupport structure

Grade Building

Ground rods and grounding system as per National Electrical Code

Figure 7.13 A depiction of the “cone of protection” concept in lightning protection.

For further information, see http://www.lightningrod.com/manual5_how.html for a neat illustration of this principle. Don’t think this works? At America’s explosives processing plants, lightning protection is accomplished by a series of tall masts, usually four, placed at each corner of the building. The cones of protection overlap, protecting the building. Sometimes a wire is strung between masts. Thanks to Mark Lowell, N1LO, for this example.

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In any event, if you plan something really tall, own up to it, take pride in it, shine upon it! Tell the Board that, yes, it will be struck by lightning—thus discharging energy that could otherwise be conserved to later strike a church steeple, a silo, or other tall structure. If lightning is a real fear, a reason proposed to deny a permit, then the very reason should be used to grant a permit. No member of the public will be hurt when the tower is struck by lightning, and few structures are so good at getting that lightning strike down to the ground safely.

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Possible Objections—Aesthetic, Noise, and Nuisance Issues

8.1 Aesthetic Impact Aesthetics? Who on Earth doesn’t appreciate the beauty of a communications tower? Well, in the event you’ve been left out in the cold on this issue, let me share the perspective of your friendly neighbor. In an essay, journalist and member of the New York Times Editorial Board, Eleanor Randolph has described our majestic friends:

“extremely ugly. … dreadful.” “They have gizmos attached at odd angles in a manner reminiscent of a sole electrical receptacle serving a whole roomful of appliances. The word sky-clutter comes to mind here.” “One fake fir … looks like an alien growth fed by a New Jersey sludge pile. (U)pstate …, neighbors are battling a tower-tree they call the Frankenpine.” (Source: “The Cell Tower Blight: Text-Message Calder, ASAP”, The New York Times, February 26, 2005)

For most opponents, aesthetic impact is really the heart of the matter. As always, you’ve got to figure out: “What is the real question?” It is very important for you to frame their question in a way that is favorable to the outcome you desire. Let’s face it: You and I think that antenna systems are majestic. We show pictures of antenna systems to friends, and bring those photos to regional meetings of the Society of Broadcast Engineers, just like car buffs swap photos of cars, or grandmothers swap photos of grandchildren. We buy the annual tower calendar from http://www.fybush.com/calendar.html. However, the truth is that some people might not agree with us, and they may be well-respected citizens in their communities. The fact that they disagree on aesthetic issues doesn’t mean that they should come out on top in the discussion. The usual test found in an ordinance is not whether something is pretty. At this point in the discussion, you should remind all concerned that if you were to do at 35 feet what you want to do at 130 feet, or 1300 feet, there would be no discussion at all. Below a certain height 181

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dictated by town ordinance or bylaw, in almost every municipality in America, you are permitted to put up an antenna somewhere. The exceptions are where the whole town is one big development subject to covenants, conditions, and restrictions (CC&Rs), or historic districts. One of those situations was called to the attention of all by Fred Baumgartner in a 2004 CQ Magazine article. Twelve miles south of Denver lies the suburb of Highlands Ranch, CO (http://www. highlandsranch.org), founded in 1981, where all 22,000 acres are “master planned.” All 27,346 homes and 3,305 apartments are 100% covenant controlled. “Here the HOAs fought a short two-way radio tower for a neighborhood fire station and won.” (See Baumgartner, F., Homeowners’ associations, covenants, and the radio operator. Part I. The truth about today’s HOAs, CQ Magazine, March, 34–37, 2004.) Except for situations like Highlands Ranch, CO (Foster City, CA is similar), the question is not whether or not a communications use is permissible. Rather, it is important to answer the question of whether this is a permitted use in the zone where the site is located and at the height proposed. The same antenna system that might be permissible below 35 feet (or 42 feet, or whatever height your local ordinance dictates) may be impermissible (a nonconforming use) above that height. You must understand what is permitted in your zone and whether or not it will be necessary for you to seek a Special Permit (Special Land Use Permit, Special Exception, Conditional Use Permit, etc.) or a Variance. Assuming that the real question is height, the next question is: “How high?” Try to come up with a short, meaningful phrase to answer this question. One of the most understandable answers for VHF, UHF, and microwave frequencies is: “High enough to get above the trees.” Other answers could be “to provide city of license coverage,” “to avoid a ‘significant gap’ in coverage,” to provide a “lineof-sight” path to the studio, and so forth. Find the phrase that works for your installation and keep repeating it. If we’re talking about a relatively low height (under 100 feet), you must remember that trees want to grow. So, if you plan on erecting in what was formerly a farmed field and it was converted into housing 30 years ago, the neighborhood trees have not yet reached maturity. Allow plenty of room for further growth before setting the height you propose. If your communications needs are not be dictated by tree height, but rather by the necessary propagation angles or coverage, this may require a more sophisticated discussion. But, in the meantime, if you are planning only a relatively modest height, remember that you’ll just barely be clearing the trees, especially when seen from the perspective of a neighboring street. What is meant by perspective? Here’s an example of how a 100-foot structure can be blocked by a 6-foot tree. See Figure 8.1, which is also located on the CD as filename Tree Screening.pdf. You should also use your own photographs in the neighborhood to your advantage, or perhaps create a photosimulation.

180⬘ Screening by 25⬘ tree

85⬘ Tree

35⬘ Building

90⬘ Structure (partially screened from person A) (fully screened from person B)

50⬘ Tree

25⬘ Tree

30⬘ Telephone pole

Person A Person B

Figure 8.1 Trees can screen even a tall antenna support structure from street level. This illustrates perspective.

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90⬘ Structure (completely screened by three trees)

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8.2 Is It Actually Visible? There is, of course, always the possibility that someone will object to the antenna system, claiming that it will be clearly visible, even when the facts are otherwise. Before shouting names at the opponent (a strategy that is almost never beneficial anyway), see if you can build your case. There are several ways to build a case that the opponent cannot actually see from his home what he’s complaining about.

8.2.1 Is It Over the Horizon? For short distances (short in relationship to the radius of planet Earth), the two formulas for calculating distance are approximately the same. At a height h above the surface of a spherical planet of radius rp: The straight-line distance to the horizon is: ds ⫽ h(2rp ⫹ h) The curved distance along the planet’s (sea-level) surface to the horizon is:  rp    1dc ⫽ rp cos⫺1   rp ⫹ h  For a detailed discussion of the question “How far away is the horizon?” see http://newton.ex.ac. uk/research/qsystems/people/sque/physics/horizon, created by Steve Sque at the United Kingdom’s University of Exeter and which includes a calculator. This can be important if, for example, you are talking about the visibility of a tower some miles across wheat fields. Table 8.1 is an excerpt from a chart on that page, converted into feet and miles: Table 8.1: Visibility on the Horizon from Various Distances. Height (feet)

Distance (miles)

Note

⬃5

2.7

Average eye level

⬃33

7

—

328

22.2

—

And for Canadian readers, Table 8.2: Table 8.2: Visibility on the Horizon from Various Distances (Metric). Height (meters) 1.5 10 100

Distance (kilometers)

Note

4.37

Average eye level

11.294

—

35.71

—

Possible Objections—Aesthetic, Noise, and Nuisance Issues 185 Is there intervening terrain? On the other hand, after you’ve done the math and calculated that some place in Vermont may be visible from Maine, you may have forgotten that the White Mountains of New Hampshire intervene! In that case, you should be consulting www.heywhatsthat.com to determine if there is an intervening obstruction by terrain. Michael Kosowsky, founder of the website heywhatsthat.com, once tackled a comparable question when he sought to answer the question: “Can you really see Russia from Alaska?” (http://www.heywhatsthat.com/alaska.html). Approaches such as this may prove useful if you are ever forced to prove that a proposed tower will really not be visible from several miles away in the historic district.

8.2.2 Are There Intervening Trees or Terrain Features? (Part I) Microsoft’s “Virtual Earth” (http://maps.live.com) offers a viewing feature called Bird’s Eye. If you zoom in and rotate the bird’s-eye view, you may be able to produce a photo that belies a claim that an antenna system is plainly visible.

8.2.3 Are There Intervening Trees or Terrain Features? (Part II) Another way to approach the visibility question is to create your own Excel spreadsheet. Figure 8.2 is an example, acknowledging that the concept was invented by John Worthington, W2ID.

8.3 Historic Preservation Offices In September 2004, the Federal Communications Commission (FCC) adopted measures to streamline and tailor the review process for communications towers and other Commission-licensed facilities under the National Historic Preservation Act (NHPA). The Commission’s process protects historic properties, including those properties to which federally recognized Indian tribes and Native Hawaiian organizations attach religious or cultural significance. Increased tower construction has resulted in an exponential increase in the number of environmental and historic preservation reviews conducted by tower constructors, State Historic Preservation Officers (SHPOs), and FCC staff, creating case backlogs, additional paperwork, and delays in the deployment of necessary wireless, public safety, broadcast, and other communications infrastructure. Key elements of the Commission action include the following: ●

Describing standards for identifying historic properties that may be affected by an undertaking and assessing effects on those properties, including a streamlined process for identifying eligible properties not listed on the National Register that may incur visual effects

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Prescribing procedures, including enforceable deadlines for SHPO and Commission review

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Providing forms designed to standardize filings to SHPOs

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Outlining procedures for communicating with federally recognized Indian tribes and Native Hawaiian organizations to ensure protection of historic properties to which tribes and Native Hawaiian organizations attach religious or cultural significance

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Using a spreadsheet to show lack of visibility

750 740 730 720 C 710 108 700 690 680 670 660 650 640 630 620 610 600 590 580 570 560 550 540 530 520 510 500 490 480 470 460 450 440 430 420 410 400 390 380 370 360 350 340 330 320 310 300

Tall trees ⫽ 80-foot height

A 108

From house, none of the antenna structures are visible as trees block the view.

B 98

HOUSE M

Top of structure B becomes visible above trees from a point 160' east of House L. (But at 730' away, structure is extremely small and difficult to see.) Closer to house, view is blocked by trees. Though higher up the hill, structures A and C are not visible.

SUNSET HILL ROADBED

HOUSE L

7 8 9 2 2 2 2 2 2 2 3 3 3 3 3 3 3 3 3 3 4 4 4 4 4 4 4 4 4 4 5 5 5 5 5 5 5 5 5 5 6 6 6 6 6 6 6 6 6 6 7 7 7 7 7 7 7 7 7 7 8 8 8 8 8 8 8 8 8 8 9 9 9 9 9 9 9 9 9 9 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 0 0 0…3 4 5 6 7 8 9 0 1 2 3 4 5 6 7 8 9 0 1 2 3 4 5 6 7 8 9 0 1 2 3 4 5 6 7 8 9 0 1 2 3 4 5 6 7 8 9 0 1 2 3 4 5 6 7 8 9 0 1 2 3 4 5 6 7 8 9 0 1 2 3 4 5 6 7 8 9 0 0 0 0 0 0 0 0 0 0 1 1 1 1 1 1 1 1 1 1 2 2 2 2 2 2 2 2 2 2 3 3 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 2 3 4 5 6 7 8 9 0 1 2 3 4 5 6 7 8 9 0 1 2 3 4 5 6 7 8 9 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

60

…

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Figure 8.2 An Excel spreadsheet demonstrating intervening terrain.

1100

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1300

Possible Objections—Aesthetic, Noise, and Nuisance Issues 187 ●

Establishing categories of “undertakings” that are excluded from the process set out in Section 106 of the NHPA; exclusions from the Section 106 review process include enhancements to existing towers, replacement and temporary towers, certain towers constructed on industrial and commercial properties or in utility corridor rights-of-way, and construction in areas designated by a SHPO

You can review the complete Nationwide Programmatic Agreement on the CD at filename Nationwide Programmatic Agreement.pdf. See also the FCC Antenna Collocation Programmatic Agreement (with a contact list) on the CD at filename FCC Antenna Collocation.doc.

8.4 Photos As engineers like to say, “A kiloword is worth a picture.” Remember, film and film developing are cheap, especially if you take advantage of inexpensive mail-away developers or take digital images (which is strongly recommended, because they more easily permit photosimulations). It is especially cheap compared to lawyer time. As suggested in Chapter 4, go take some pictures! Take digital pictures! First, take pictures from the proposed site aiming toward: ●

The street

●

Neighboring streets

●

Every neighboring lot, house, building, etc.

●

Your equipment shed

Then, aim toward the proposed site from: ●

The street, including across the street

●

Neighboring streets

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Every neighboring lot, house, building, etc.

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Your equipment shed

Don’t try to be cute and take your photos in the middle of the summer when the leaves are fully leafed out. Do that and someone at the public hearing is going to pretend he is Perry Mason in high dudgeon, shouting: “But how will it look in winter?” Actually, this is a pretty silly question, because your neighbor will be outdoors working on his lawn and garden much more in the summer, not the winter. Even during the cold months, your neighbor is not too likely to be tilted over on his side, looking up through a window to see the top of your structure, but the Board won’t be thinking about that, and the Board won’t be impressed when you mention it. On the other hand, if it is summer and you must press forward with the application process, go ahead—don’t wait until winter just to take the photos. Wait too long and the bylaw/ordinance could change. Besides, given the delays inherent in the process, you can always go back and take post-fall photos later.

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Watch carefully to see if an opponent makes conflicting statements, which you can then point out to the Board. Here is a common example of conflicting statements: “The photos were taken in the summer when leaves block the view of this monstrosity.” Later, he says: “It will stick out like a sore thumb above the trees.” The opponent’s problem is that he can’t have it both ways. Either the antenna is visible through the trees in winter or it is above the trees (more probably), in which case the trees (leaves or no leaves) are irrelevant because the view (from a distance) may be unobstructed. Of course, there are times when your antenna is only visible through the trees in winter, which means that his expression that it will “stick out like a sore thumb above the trees” is wrong. You might ask the Board if it wouldn’t be a good idea for the opponent to make up his mind. (Note that, before the hearing, there should be a site visit. If there has been a site visit, and your opponent’s characterizations of visibility are unrealistic, ask the Board to recall it the way they saw it and to confirm those memories with the photos you have provided.) For pictures in the direction toward adjacent houses or buildings, it is probably adequate to prepare four 3 ⫻ 5-inch prints per page and to display them with color photocopying. For all other pictures, two 4 ⫻ 6-inch prints per page will do nicely. Be sure to label each photo with some helpful remarks, such as “Photo taken from the intersection of Portage and Main. This mid-winter photo shows lack of visibility without foliage.” Again, using a digital camera and printing the photos yourself, with labeling, will make you look like a real pro. The best possible photo shows the exact same installation taken at your last location or a comparable installation in a comparable location. This shows several things: ●

That some other town has approved such an installation

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That it wasn’t very obtrusive there, either

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What it will look like when erected here

The next-best photos are of almost any similar height installations, whether in your town or not. If photos can be taken of existing installations in your town, so much the better. It should then be obvious to the Board that civilization didn’t come to an end because of these other antennas. Nonetheless, a comparable installation in another town will also do. Whatever you do, however, it is important to get some photos in front of the Board, because: (1) you want to confront the fear of the unknown, and (2) you want to make it obvious that what you propose is not unique, but in fact is rather common. A final warning on taking photos. They must fairly represent the situation. While you and I might think that if you take a photo at exactly the right moment—when the antenna was sparkling in the sky—that you have a masterpiece, such a photo does not fairly represent the situation. Instead, take a photo on a cloudy day. This represents the most realistic situation, in which there are no distracting, shiny reflections off brand-new aluminum or fresh white plastic covering a 20-foot whip. After only a few months in the sky, all of the shiny metal (aluminum or galvanized steel) will have oxidized or the plastic will have weathered and dulled. Exposed components that have weathered will remain dull for the rest of time.

Possible Objections—Aesthetic, Noise, and Nuisance Issues 189

8.5 Balloon Testing You may run into a situation where you will be accused of erecting a support structure that will be ugly from a certain vantage point. If you know or suspect that it can’t even be seen from a particular place, you may wish to consider doing your own balloon test and including photographs in the initial application, before you are asked to do a balloon test by the board. The Board may still ask you to repeat the balloon test, but for a relatively simple situation you may be able to avoid the concomitant delay by submitting photographs with the initial application. What you do is float a balloon up to the height you propose, from the location you propose, while communicating with another person via handy-talkie (HT) or cell phone. Doing this with two people is a good idea because you might not know that the balloon has drifted one way or another due to wind by the time you get to the spot from which you want to take the photo. It is very powerful to show the Board that some intervening obstruction prevents a view of the balloon, or perhaps that the balloon can be seen but only just barely, through intervening trees. Here’s an inexpensive way to perform a balloon test. A client of mine used this technique to prove to one neighbor that an 80-foot-tall structure, deep in the woods, would not be visible on the neighbor’s property—even though it was 20 feet higher than neighboring trees. He used a cluster of six or seven balloons, tied together with some kite string. He got them at a party store, along with a nonrefillable helium tank. The whole kit cost him about $20. There was more than enough helium for the two tests he made. Fair Radio (http://www.fairradio.com/; try http://www.fairradio.com/catalog.php?mode⫽ viewitem&item⫽6176) carries 7-foot weather balloons. Surplus Sales of Nebraska (http://www. surplussales.com/) may have some also. Balloons are often found on eBay, but my client found those prices prohibitive for a one-time use.

8.6 Crank-Up Towers as a Solution Should a Board, or staff member representing a Board, suggest that you accept a crank-up structure as an accommodation, think really hard before saying no. It is obvious that, as a commercial user, raising and lowering your antenna-support structure may be highly impractical, verging on the ridiculous. But, courts hate it when an applicant shows no flexibility. Nonetheless, the mere fact that staff has suggested a crank-up is encouraging. Why? Because a prime rule in zoning is: “Always keep them talking.” In other words, if you proposed a self-supporting lattice tower and they countered with a crank-up, you might be able to explain why that won’t work for you (inadequate wind-load capability, perhaps), but then ask if they would consider a monopole or a thinner, guyed tower. In any case, a condition in a permit limiting the raising of the structure to full height only during nighttime hours is probably illegal. Chris Imlay, Esq., SBE General Counsel, points out that: “Only the FCC can impose or regulate hours of operation, pursuant to the general enabling clause of the Communications Act of 1934. There is no municipal jurisdiction over hours of operation of radio stations. The usual situation involves hours when crank-up towers can be extended to full height, but to the extent that regulation determines communications ability, the infringement on Federal jurisdiction is the same.”

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In addition, Jim O’Connell, Esq. (W9WU), a former Assistant Attorney General (IL), likes to point out that such conditions are silly, because emergency communications readiness requires almost permanent connections to a local or regional packet radio network. Therefore, in extreme circumstances you may wish to accept a condition where you are forced to erect a crank-up, with the condition that it can only be raised when in use, and then just leave it up all the time—because it is in use all the time.

8.7 Kinstar Towers as a Solution For broadcasters operating on the high end of the AM band, with omnidirectional authorization (i.e., a directional array is not required), here is another option: STAR-H Corp. and Kintronic Laboratories, Inc., have developed the Kinstar low-profile AM antenna and consider it the solution for broadcasters attempting to secure real estate for new antenna projects in restricted areas. The Kinstar antenna measures only 45 feet high at 1680 kHz.They claim that data collected in late 2002 show that the Kinstar antenna is 98% as efficient as a standard quarter-wave monopole antenna at less than one third the height. Testing results on the antenna can be found on the CD at filename KinStar_Test_Results.pdf. The comprehensive report submitted by the developers demonstrates that the radiation pattern of the Kinstar antenna does not change significantly as the antenna is scaled at frequencies across the AM band. The report also shows that the performance of the Kinstar antenna, built according to the manufacturer’s specifications, will comply with applicable rules and will remain consistent for installations at different AM frequencies. The report is available on the FCC’s website (http://hraunfoss. fcc.gov/edocs_public/attachmatch/DA-05-2741A2.pdf ). Based on its review of the Kinstar field tests and submitted reports, the FCC announced in October 2005 that it will not routinely require the submission of a proof of performance, current distribution measurements, or a formula for the vertical plane radiation characteristic for nondirectional AM facilities that utilize these relatively short antennas. The notice is available on the CD as filename KinStar_FCC_review.doc. Nonetheless, accepting a short tower will limit the vertical real estate available to a broadcaster as space available to a cellular carrier, a paging company, a WISP, etc. You may need that additional income to keep the AM station alive.

8.8 Paint You may be asked if you can paint your structure to reduce visibility. The answer is that, in general, towers come in galvanized gray steel. After weathering, this will already be very close to the leastvisible color, and no painting is necessary for heights below 200 feet. Gray is, in fact, the preferable color, if you want to limit visibility, which is why warships are gray and why military airplanes have gray underbellies and wings. It is the best, most unobtrusive color against the sea or sky. Should your travels permit, consider a visit to Norfolk, VA, where the battleship USS Wisconsin is on display at the Nauticus nautical museum. There you will see a sign describing the paint color of the USS Wisconsin as “Haze Gray” (color number 26270, per MIL-STD-595), which is a silicone alkyd

Possible Objections—Aesthetic, Noise, and Nuisance Issues 191 semigloss enamel, in accordance with MIL-PRF-24635. A good summary of the paint’s history in Naval use may be found at http://www.corrosionchronicle.com/limeart_4.asp. With the lives of seamen and pilots at stake, the Navy has put a lot of neuron power into the subject. There is even a common Navy phrase: “Haze Gray and underway.” Enter the phrase in Google and be amazed at the number of references. A 1997 bulletin to “NAVSURFLANT SHIPS” (Navy Surface Ships in the Atlantic) from COMMNAVSURFLANT (the Commander, Navy Surface Fleet in the Atlantic) described Haze Gray as a “passive countermeasure system . . . to reduce the average contrast of the ship to the horizon.” By using Haze Gray, it said, “a ship[’]s camouflage concealment ability is enhanced and the probability of detection and targeting is reduced” (http://www.fas.org/man/dod-101/sys/ship/weaps/docs/extpaint.htm). Stand up for weathered galvanized steel at heights that do not require FAA-mandated lighting and marking. Sooner or later, if you do nothing, weathered galvanized steel will resemble Haze Gray. If you don’t think it will scuttle the whole undertaking, it may be important to point out that painting thin antennas (for example, whips) may not be as effective as one would like. Depending on the viewing angle and the weather, a painted antenna may actually be more visible than an unpainted one.

8.9 Camouflage One alternative you may have not considered is camouflage netting. Figure 8.3 shows some military camouflage netting wrapped around the base of a Rohn SSV tower to limit visibility through the lower branches of trees not as fully vegetated as the upper portion of surrounding trees. This photo shows an experimental use of Air Force-supplied netting on the first 10 feet. For panel antennas mounted on buildings, you might consider camouflage covering that mimics the wall of the building (Figure 8.4), available from Phazar (http://www.phazar.com/chameleon.htm). For installation photos, see http://www.phazar.com/Installations.htm

8.10 Zoning Violations—Setbacks and Yards Don’t try to put anything past the Board. Either someone on the Board will catch it or you can be assured that an opponent will be looking to catch it. So, if you need to invade a standard town setback or “required yard” (i.e., 20 feet from a rear-lot line), or obtain a Variance (such as a Variance from a 1:1 setback for structure height), be sure to spell it out, show it on the plot plan, and ask for what you need in your summary. For example, the right place to put your structure for least aesthetic impact—the place that a neutral observer would consider to be in the best interest of your neighborhood—may be 5 feet closer to a side-lot line than permitted by the town bylaw or ordinance. The way to handle this is to propose in the alternative. Propose Alternative A, which is permitted by the bylaw or ordinance, and then explain why this is a less attractive choice from the perspective of the neighbors than Alternative B, which requires a Variance. An example of a good reason is: Alternative A would require a self-supporting tower. This involves much more concrete, a wider tower face all the way up, a much wider face at the base—in other words, self-supporting Alternative A is something really substantial.

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Figure 8.3 Military camouflage netting wrapped around the first ten feet of a Rohn SSV tower. (Photograph by the author.) On the other hand, Alternative B might require only a guyed tower with an 18-inch face, 18 inches all the way up. But, due to the shape of the lot, the tower (or an anchor) may have to be a few feet into the side-lot area, where it would not normally be permitted. (Note by the author: I had that exact case once. After we pointed out that the town was much better off with a less imposing structure if a Variance were to be granted, the Variance was indeed granted.)

Fortunately, if the facts support it, you may find yourself in a situation where you are arguing for a Variance, which the Board will see is in the best interest of the neighborhood, while your opponents are arguing against the Variance. They are hoping that by denying you the Variance they may succeed in denying you the permit altogether. In this case, you must say that you are perfectly willing to spend the money to meet the setback conditions. Express your willingness, but carefully and plainly point out that the opponents cannot possibly have the best interests of the neighborhood in mind. After all, the consequence of their position is to force you to build a structure that is 10 feet wide at the base and more plainly visible because the setback forces it into the open area of the yard, where it becomes highly visible. Bottom line: No funny business. Present the alternative (with separate plot plans) and tell the Board why the alternative you are promoting is best for the neighborhood. That is always your best argument. Trust me, the Board does not care if the reason why you urge Proposal B is because it is less expensive

Possible Objections—Aesthetic, Noise, and Nuisance Issues 193

Figure 8.4 Phazar makes a line of products that camouflage antennas to blend in against whatever structures they’re mounted on. (Photo courtesy of Phazar; Mineral Wells, TX.)

to you or because your staff thinks “it will look better there.” If more than one site is possible, you must always cast your choice for a location on your parcel that is in the best interest of the neighborhood. Here are some other good reasons for moving an antenna-support structure to a place on the lot where it would normally not be permitted under the ordinance: ●

●

●

If you move it over there and it fell—although the odds are so long as to be unthinkable—it would only fall in wild underbrush or forest. In the permitted location, on the other hand, the structure could fall on a neighbor’s house/building. If you move it over there, views of the structure can be obscured by trees, whereas forcing it into the middle of the lot (because it must be 20 feet from a back-lot line and 50 feet from a side-lot line) would make it much more visible to the whole neighborhood. If you put the guy anchor over there, guy wires can be snaked through the trees all the way to the ground. However, if the setback must be obeyed, you would have to erect a heavy I-beam to “short stop” the guy wires before they invade the setback. The guy wires in the woods will never be noticed, but that 14-inch I-beam, sticking 12 feet into the air, may be less attractive to the casual observer.

8.10.1 Setback Let’s get technical. A setback usually means the distance from a way, such as a driveway, a highway, or a street. Normally you’ll be dealing with the distance from your building to the street in front of your building. You’ve got to check the definitions section of your town’s bylaw or your county’s ordinance.

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Similarly, you’ve got to check the definitions section of the bylaw to find out what a yard is. Normally it means the distance between a lot line and something. Here’s one town’s definition: YARD—An area open to the sky, located between a structure or other property line and any principal structure or element thereof other than projections allowed to encroach on building lines and yards under the State Building Code. Depth is to be measured perpendicular to the street or property line.

In a situation where the tower and equipment shed below it are just about all you’ll find on the parcel of land, the tower and shed probably constitute the principal use. Here’s an example of how you can make a very strong legal argument. Start by determining if the setback applies to buildings (perhaps a defined term in which the building must have a roof, or must be habitable), or to buildings and structures. Where an antenna-support structure is an accessory structure, not a principal structure, the antenna may be an element of the antenna-support structure, but the antenna is not an element of the principal structure. Therefore, the “yard” requirement under this bylaw applies to neither the antenna nor the antenna-support structure. Here’s another argument. You may discover that the yard requirement applies to a principal structure; however, you may be able to argue that the yard requirement does not apply to an appurtenance to a principal structure. Here, the support is the principal structure and the antenna is the appurtenance. The lesson? Read those definitions sections carefully.

8.10.2 The Flying Setback If you are a commercial user with a large antenna (perhaps a 7 to 30 MHz log periodic, or a 10-meter dish) who is selecting a site, be sure to do the trigonometry to account for the possibility that the triangle formed by your boom and longest element (normally the reflector on the lowest frequency band the antenna covers), or the outer edge of the dish, will not go over the property line or the setback line as it rotates. By informal inquiry, you may also wish to ask the building inspector if temporary intrusions into a setback, only when the antenna is pointed in a certain direction, would be acceptable. After all, this would not be construction in the setback area, and it would be a de minimus intrusion, just as lamp poles and mailboxes are always permitted within the setback. Your antenna would be no more of an intrusion than a flag that stretches out in the breeze and invades a setback. If you want to put your support structure within the setback, you may have a problem. Perhaps you can claim it is a temporary structure, exempt for some reason under the bylaw or ordinance. Sometimes accessory structures such as sheds are exempt from the setback or yard requirements. If it is only a rotary antenna that invades the setback, argue that only the location of the base matters, and the antenna is just a protrusion, similar to the way a roof overhang “doesn’t count” (usually). Nonetheless, your best bet is always to fully understand the issues of “required yard” and “setback” and to plan construction accordingly.

Possible Objections—Aesthetic, Noise, and Nuisance Issues 195

8.10.3 Average Height You may have a zoning bylaw or ordinance that limits the height of a structure within the setback or required yard. This can affect guy wires going to guy anchors in the ground. Sometimes it is a 1:1 setback, while sometimes it is a simple maximum height—something like 12 feet, a number chosen because that is the height of a basketball net with backboard. (Don’t be shocked; it’s an American sport!) Just because your top guy wire may be 21 feet above the ground as it enters the setback area, do not hesitate to propose it. Just explain that a 3/16- or 1/4-inch galvanized steel guy wire against the backdrop of trees disappears from view. So it is de minimis (a trifle), and the law should not concern itself with trifles. Furthermore, argue that the average height within the setback of the guy wire, or perhaps even the guy set, still meets the 1:1 setback test. If worst comes to worst, and you must avoid guy wires in the required yard, propose that the guy wires end at a tall I-beam, or piece of railroad track, set deep into the ground. This can prevent the guy wires from ever entering the required yard.

8.11 Interference: Radiofrequency or Television This is one of the most common arguments made against antenna proposals. Legally, it is also the most untenable. Frankly, the Board shouldn’t even hear such arguments. If this were a court your lawyer would jump up and shout, “Objection” and the Judge would reply, “Sustained.” However, this is not a courtroom and the Board will be very reluctant to prevent people from speaking out at a public hearing. People who stand and object to your proposal on the grounds that it may interfere with TV reception, stereos, pagers, garage-door openers, and alarm systems come in several flavors. As you would expect, many of them are just reaching for yet another argument to make, in what I call the spaghetti defense. These people throw every argument possible against the wall to see what sticks. Whatever the reason for putting forth the argument, remember you are not trying to satisfy the person making the objection. You are trying to satisfy the Board. This is a very big distinction. Here’s an example of why it is a big distinction. Assume that someone who lives four blocks away rises to make the objection that he fears that you will interfere with his pager. If you respond that the inverse-square distance law (by which the electromagnetic field of your transmitted signal decreases as the inverse of the square of the distance) will prevent this, you may have satisfied the guy who lives four blocks away. Unfortunately, you’ve just told the Board that the guy who lives next door may have a problem. Bad idea. There are several ways to deal with this complaint. Not wishing to waste the Board’s time by making the application any fatter than necessary, I prefer not to include a legal brief in the application stating all the reasons why the Board cannot rule in this area. However, I certainly bring with me clean copies of the Broyde, Southwestern Bell, and Freeman cases. Feel free to hand them over—you can always print more!

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8.11.1 The Broyde Case Broyde v. Gotham Tower, 13 F. 3d 994 (6th Cir. 1994) (http://pacer.ca6.uscourts.gov/cgi-bin/getopn. pl?OPINION⫽94a0007p.061) was a case where the neighbors sued the operator of an 800-foot tall commercial tower in Florida and the FM radio station tenants, claiming common-law nuisance by interference with all manner of radio, TV, telephone, garage-door opener, and other home electronic devices. The Court found implied preemption of the field by federal law and ruled that, even if everything the plaintiff (Broyde) said was true, the complaint had not stated a claim upon which relief could be granted. This opinion of the court is on the CD as filename Broyde v. Gotham Tower.pdf.

8.11.2 The Southwestern Bell Case Southwestern Bell Wireless, Inc. v. Johnson County Board of County Commissioners, 199 F. 3d 1185 (10th Cir. 1999); cert. denied, 530 U.S. 1204 (2000) (http://www.ca10.uscourts.gov/opinions/98/983264.pdf), enjoined this Kansas Board of County Commissioners from enforcing an ordinance against interference. The court found that there was complete federal preemption of the field. Allowing local zoning authorities to condition construction and use permits on any requirement to eliminate or remedy interference “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. . . . Congress intended federal regulation of [radiofrequency interference] issues to be so pervasive as to occupy the field.” This document is on the CD as filename SW Bell Wireless.pdf.

8.11.3 The Freeman Case Freeman v. Burlington Broadcasters, 204 F. 3d 311 (2d Cir. 2000); cert. denied, 531 U.S. 917 (2000) (http://www.fcc.gov/ogc/documents/opinions/2000/97-9141.doc), involved a 199-foot commercial tower on Pease Mountain in Charlotte, VT. A condition in the grant of the permit for the tower required the permittees to remedy any radiofrequency interference (RFI) from tower signals with appliances and devices in local homes. The Second Circuit court held that any attempt by the Zoning Board of Appeals to enforce the condition was preempted by federal law, which preempts the field, giving the FCC exclusive authority over RFI. In a little-noted last sentence of the opinion, the Court wrote: “The Appellees may recover their costs,” so WIZN, Charlotte Fire and Rescue Services, and Bell Atlantic NYNEX Mobile were entitled to collect their court costs (but not attorney’s fees). This document is on the CD as filename Freeman v. Burlington Broadcasters.pdf.

8.11.4 The U.S. Code No PowerPoint or collection of slides or posters would be complete without quoting this controlling and preemptive federal statute (at least §302a(f)(2), below), which speaks powerfully and speaks for itself. Late in the second term of President Clinton, in 2000, the Congress passed, and the President signed, P.L. 106-521, which further clarified, if there was room for doubt, that municipalities have no authority to act with respect to interference. The Communications Act, at 47 USC §302a, now reads, in relevant part: 1

This case precedes the start of case reports on free websites, and this link only works for PACER subscribers (mostly lawyers who are litigators).

Possible Objections—Aesthetic, Noise, and Nuisance Issues 197 47 USC § 302a. Devices which interfere with radio reception SUBCHAPTER III-SPECIAL PROVISIONS RELATING TO RADIO (f )(2) A station that is licensed by the Commission pursuant to section 301 of this title in any radio service for the operation at issue shall not be subject to action by a State or local government under this subsection. A State or local government statute or ordinance enacted for purposes of this subsection shall identify the exemption available under this paragraph. (3) The Commission shall, to the extent practicable, provide technical guidance to State and local governments regarding the detection and determination of violations of the regulations specified in paragraph (1). (4)(A) In addition to any other remedy authorized by law, a person affected by the decision of a State or local government agency enforcing a statute or ordinance under paragraph (1) may submit to the Commission an appeal of the decision on the grounds that the State or local government, as the case may be, enacted a statute or ordinance outside the authority provided in this subsection. (B) A person shall submit an appeal on a decision of a State or local government agency to the Commission under this paragraph, if at all, not later than 30 days after the date on which the decision by the State or local government agency becomes final, but prior to seeking judicial review of such decision. (C) The Commission shall make a determination on an appeal submitted under subparagraph (B) not later than 180 days after its submittal. (D) If the Commission determines under subparagraph (C) that a State or local government agency has acted outside its authority in enforcing a statute or ordinance, the Commission shall preempt the decision enforcing the statute or ordinance. (5) The enforcement of statute or ordinance that prohibits a violation of a regulation by a State or local government under paragraph (1) in a particular case shall not preclude the Commission from enforcing the regulation in that case concurrently. (6) Nothing in this subsection shall be construed to diminish or otherwise affect the jurisdiction of the Commission under this section over devices capable of interfering with radio communications.

Furthermore, many home entertainment electronic devices, including portable telephones, bear the following required label, in accordance with 47 CFR §15.19(a)(3): This device complies with Part 15 of the FCC Rules. Operation is subject to the following two conditions: (1) This device may not cause harmful interference, and (2) this device must accept any interference received, including interference that may cause undesired operation.

Actually, the erection of an antenna system high in the sky will have a tendency to decrease, not increase, the likelihood of television interference, as higher antenna systems (and you may also be able to speak about the effect of a directional array) are farther away from neighboring TV sets, etc., and transmit over nearby homes. A shorter antenna support structure, for example, would have a greater likelihood of interference, since it could direct more energy toward a neighboring TV set.

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This is exactly the position that was taken by the FCC’s Chief of the Private Radio in a letter to the Board of Zoning Appeals of Hempstead, NY (October 25, 1994): (A)ntenna height is inversely related to the strength, in the horizontal plane, of the radio signal that serves as a catalyst for interference in susceptible home electronic equipment. It is a matter of technical fact that the higher an amateur antenna, the less likely it is that radio frequency interference will appear in home electronic equipment.

For a review of the field of radiofrequency interference (RFI), see the article “The Ghost in the Computer: Radio Frequency Interference and the Doctrine of Federal Preemption,” by R. H. Brock (Computer Law Review and Technology Journal, 1999(1), 17–36, 1999; http://www.sbot.org/docs/ RFI.pdf). For information on resolving problems, the FCC’s Interference Handbook is available on the Internet. The 22-page booklet, available from the Compliance and Information Bureau via the FCC home page (http://www.fcc.gov/ftp/Bureaus/Mass_Media/Databases/documents_collection/ 1993InterferenceHandbook.pdf), includes the same information and illustrations contained in the Interference to Home Electronic Entertainment Equipment Handbook. It includes information about equipment installation, identifying interference sources, curing interference problems, and filters. It also contains a list of home electronic equipment manufacturers and telephone numbers. Figures illustrate different TV interference problems, including ham or CB transmitter interference. Note that the law on this subject is so strong that one federal court has even ruled that a Planning Board request for information on interference is unreasonable on its face; see Palmer v. Saratoga Springs, 180 F. Supp. 2d 379 (N.D.N.Y. 2001) (http://www.nysd.uscourts.gov/courtweb/pdf/D02NYNC/01-12259.pdf; slip opinion at 15). A short memorandum of law may be found on the CD as filename Memorandum of Law-RFI.pdf. If your town has a Town Planner, you should meet with this person in advance of the public meeting and lay out the cases and memorandum. There is a good chance that the Town Planner will brief the Board in advance of the meeting that this area is off-limits legally. Whether or not you meet with the Planner for this matter, whether or not he has sought legal advice in advance, during the hearing I often lower my voice and proceed to say, calmly and very deliberately, something like this: Mr. Chairman, this is one topic that is completely off-limits to you. It is improper . . . to . . . even . . . ask . . . the . . . question [paced slowly for emphasis] in a hearing. I urge you to understand that you should not go down this road. Before you entertain any more questions about RF interference, or consider conditioning the permit requested in any way that is related to RF interference, you really should consult the City Attorney.

8.11.5 RFI—The Applicant’s Assurance No matter how secure your legal position, be sure to practice your assurance in advance. As with other responses, this appears on an answer card that you may print straight from the CD, filename Answer Cards.pdf. The idea here is that you must not promise to cure the problem, because some people

Possible Objections—Aesthetic, Noise, and Nuisance Issues 199 own equipment you cannot cure. Second, you don’t really want to personally cure any neighbor’s gear. Once you touch it, the neighbor is going to blame you for any subsequent breakdown. This is sometimes called the “you touch it, you own it” rule. You might choose to offer to pay for the components necessary to fix the problem. Just don’t mention at the hearing who will have to install them. So where does this leave you? Think about a response something like this: Members of the Board, this subject area is off-limits to the town. It is forbidden to you. I’ve brought with me citations to a statute and legal cases that make it abundantly clear that municipalities have no power to act in this area. The Federal Communications Commission is the sole authority in cases of radiofrequency interference. However, I understand the concern you’ve heard here. First, let me say that I’ve used comparable transmitters in many situations like this one and never had the problems described. Also, the new antenna, by virtue of its height, will be further away from neighboring homes and offices than would be the case if it were lower and therefore it is less likely to interfere. [Obviously, this argument should not be made if we’re talking about an AM antenna in a residential neighborhood.] The truth is that such interference issues are so uncommon that some manufacturers choose not to include the few extra parts necessary to calm down interference in millions of sets, when they can help with the occasional problem and save a lot of money cumulatively. As a result, the Consumer Electronics Manufacturers Association maintains a Web page on whom to contact about such problems, generally using an 800 number. The repairs are simple. In any event, I pledge to cooperate fully with my neighbors to help them to resolve any complaint that may arise.

Note that “cooperate fully” doesn’t require you to fix anything. This promise is likely to be forgotten quickly in any event. But again, you don’t want to touch anything your hostile neighbor owns, or you may find yourself replacing all of his gear at your expense.

8.11.6 Installing Filters Let’s say you install a 0.01-µF bypass capacitor inside a digital video recorder (DVR) or telephone answering device (TAD). Years later, when some mechanical part of the DVR drive fails, or a child spills a cola on the TAD, the neighbor will assume that you caused the breakdown. Nevermind that you never touched that portion of the machine—you were the only person who ever put his hands inside. Your neighbor will never be convinced otherwise. So, unless you are willing to take on free repairs of home-entertainment equipment, don’t offer to fix anything and don’t put your hands inside. On the other hand, the cost of capacitors, filters, and toroids is not great. For filters, one of the best manufacturers of filters for dealing with RF in phone lines is the K-Y Filter, (www.ky-filters. com/am.htm). You can always offer to purchase and “help” to install filters and toroids. The cost of purchase is low and they are usually easy to install. Just remember that what you are offering to do is to buy the filters or toroids and instruct the neighbor on how to install them. Remember the warning above: “Touch it and you own it.”

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8.12 Property Value The claim that installing your antenna will lower property values is probably false. It is another element of the “spaghetti defense” and is usually put forward by someone who wants to put up every possible objection. A study in Potomac, MD, concluded that monopoles have no effect on home and property prices. Thorne Consultants, in conjunction with the law firm of Cole, Raywid & Braverman, LLP, and working for AT&T Wireless, issued a study in May of 2001 that included an exhaustive analysis of 85 real estate transactions to determine the relationship between property values and the existence of a visible monopole. The study aimed to find out if homes with visible views of the monopole had either longer than normal marketing times or lower prices. The study concluded there was no relationship between proximity to and/or visibility of a monopole and prices paid for homes and vacant lots in the area. One illustrative example included a home adjacent to the monopole that was constructed in 1994 for $800,000 and had increased in value to $1.975 million in 2001. There are several possible strategies available to the applicant.

8.12.1 Borrow Someone Else’s Study That Shows No Impact on Home Values The CD included with this book has some property value studies that have been submitted in other cases, both amateur and cellular telephone cases, since the issue is common to both. One strategy is to simply submit those studies and point out that they have been accepted in previous cases for even bigger structures than you propose. Also included on the CD is a federally funded study by REPP (Renewable Energy Policy Project) entitled “The Effect of Wind Development on Local Property Values.” It can be found online at http://www.repp.org/articles/static/1/binaries/wind_online_final .pdf. This highly detailed, 81-page study includes references at the end to other wind power and electric transmission line studies on the question of property values. A more recent analysis of power line studies may also be found on the accompanying CD, prepared by James A. Chalmers, Ph.D., of Chalmers & Associates, LLC, Billings, MT, in April 2008 and entitled: “Assessing the Impacts of High-Voltage Transmission Lines (HVTL) on Property Values.” On the CD, see filename Chalmers High Voltage.pdf. This highly qualified author analyzes the 16 most widely cited published studies that offer conclusions on the relationship, if any, between the location of power lines and property values. To quench your thirst to learn the conclusions across the many studies reviewed, Chalmers writes as follows: ●

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Over time, there is a consistent pattern, with about half of the studies finding negative property value effects and half finding none. When effects have been found, they tend to be small; almost always less than 10% and usually in the range of 3 to 6%. Where effects are found, they decay rapidly as distance to the lines increases and usually disappear at about 200 to 300 feet. Two of the studies investigated the behavior of the effect over time and found that, if there were effects, they tended to dissipate over time as well. There doesn’t appear to have been any change in the reaction of markets to high-voltage transmission line proximity after the 1992 Swedish health effects studies.

Possible Objections—Aesthetic, Noise, and Nuisance Issues 201 See filenames K1IR Assessments.pdf, W1UK Assessments.pdf, K1NU Assessments.pdf, and K1ZM Dartantra Dr Study.pdf on the CD for three amateur property value studies. The Excel files that created the studies are also located on the CD. There’s also an extremely large and detailed “Impact Study of Two Communication Towers/Three Subdivisions Cordova, Shelby County, Tennessee 38018.” An abbreviated summary is on the CD as filename BellSouth Mobility Property.pdf.

8.12.2 Bring Along Your Own “Expert” You can hire your own appraiser or you can just bring along your own licensed real estate agent, experienced in your community, to the public hearing. If you can’t get an agent who lives in town, try for one who works in town. If you can’t find that, find a real estate agent who works nearby. You may even ask around among friends who are engineers to see who has proven useful in other situations. If opponents argue property values, you must counter, or else someone is surely going to argue that the “evidence” (really just the opinion of someone) was “uncontroverted.”

8.12.3 If You Are a Broadcaster, Argue the First Amendment Here’s how to argue First Amendment protection in a broadcast case. The following comes from the Koor Communications brief in Koor v. City of Lebanon: [The broadcaster’s] position has always been that, as a broadcaster, it is a First Amendment “speaker” subject to reasonable, narrowly drawn statues that may regulate the time, place, and manner of expression but that blanket prohibitions of expression are invalid. Broadcasting is clearly a medium affected by a First Amendment interest. United States v. Paramount Pictures, Inc., 334 U.S. 131, 166 (1948). “But the reach of radio signals is incomparably greater than the range of the human voice and the problem of interference is a massive realty.” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 387-88 (1969). “[I]f two broadcasters were to attempt to transmit over the same frequency in the same locale, they would interfere with one another’s signals, so that neither could be heard at all. The scarcity of broadcast frequencies thus required the establishment of some regulatory mechanism to divide the electromagnetic spectrum. . . .” Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) (internal citations omitted). The FCC’s regulation of minimum antenna heights specifically required to avoid interference with other stations on the same or nearby frequencies, is a part of the regulatory mechanism. The City cannot create an effective total ban on this form of First Amendment speech by creating an effective total ban on new AM broadcasting. See Metromedia v. San Diego, 453 U.S. 490 (1981) (holding that a total ban on billboards was not a time, place and manner restriction). Under a First Amendment analysis, the City’s height ordinance requires a higher level of scrutiny than an ordinary land use regulation. [Eventually we are brought back to the question of] whether the FCC would permit an array of 42-foot antennas [the maximum allowed by that city’s ordinance]. To [the broadcaster], the answer is that the FCC regulations speak for themselves, do not permit 42-foot antennas in this instance due to interference problems, and the City’s zoning bylaw is invalid as it is both preempted by Federal regulation and a violation of the First Amendment. Denial of the ability to broadcast at all is denial of a right secured by the Constitution. See City of Ladue v. Gilleo, 512 U.S. 43 (1994):

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Our prior decisions have voiced particular concern with laws that foreclose an entire medium of expression. Thus, we have held invalid ordinances that completely banned the distribution of pamphlets within the municipality, Lovell v. Griffin, 303 U.S. 444, 451-452 (1938); handbills on the public streets, Jamison v. Texas, 318 U.S. 413, 416(1943); the door-to-door distribution of literature, Martin v. Struthers, 319 U.S. 141, 145-149 (1943); Schneider v. State, 308 U.S. 147, 164165(1939), and live entertainment, Schad v. Mount Ephraim, 452 U.S. 61, 75-76 (1981). AM broadcast antennas are a “medium of expression” that cannot be “completely banned.” What you are really trying to point out to the Board is that your opponents are unwilling to agree to any height where the antenna system is visible, but effectiveness may well be a function of visibility. Ask the Board to apply the appropriate test. If you are a broadcaster, you are required to cover your city of license, even at night (which helps the AM daytimer). If you are a cellular telephone carrier, you may need the height to prevent a “significant gap.”

8.12.4 Create Your Own Study There are at least two fairly easy studies you can do yourself. One is to locate a tower, or other towers in town (or a nearby town) and check out neighborhood assessed values before and after the erection of an antenna system, noting that the assessor makes no adjustments for nearby antenna systems. The other, requiring far more effort, might involve looking into sales data. The details for creating your own studies are outlined below.

8.12.5 Create Your Own Property Values Study Using Real Estate Professionals The traditional way to present evidence on the subject of property values is to hire someone with certification as a real estate appraiser. This approach was used in a Boulder, CO, ham radio case (see filename NQ0I Boulder CO Assessment.pdf on the CD) and in several cellular telephone site applications, also located on the CD. The appraiser picks comparables (neighborhoods of homes that are comparable to yours) where antenna installations are present or absent and demonstrates that the presence of an antenna has no effect on property values. This approach is expensive. Whether it is persuasive or not depends on the presentation made by your appraiser at the hearing. Such evidence is always subject to attack on the grounds that the expert has been hired by the applicant and has selected his comparables specifically to prove his point. It will also be attacked on the grounds that the appraiser is just one real estate person. Your opponent will say, “I’ve spoken to several others who have a different opinion.” Well, of course, the opponent has spoken to other agents, since the world is full of all sorts of “real estate persons.” Someone who hasn’t done the hard work of analyzing the data can usually be found to support almost any position you like! The reason for this variety of expertise is that real estate persons come in many flavors. In many states, one may become a real estate agent by passing a relatively simple examination or even without passing any examination at all. For this reason, the world is full of “kitchen brokers.” This semi-derisive phrase generally refers to agents, not licensed brokers, and suggests that they are not very serious about the work, that they are not well trained, and that they often work from the family kitchen. They have the lowest level of authority in the industry.

Possible Objections—Aesthetic, Noise, and Nuisance Issues 203 The next level up is broker. This usually requires a more serious license examination, sometimes accompanied by some amount of experience working with a licensed broker before the designation can be achieved. Finally, there is the broker who has established his or her own agency and employs agents or brokers in training, as well as providing office space, office machines, a secretary, and so forth. Obviously, this person is running a real estate business and is more likely than the part-timer to understand the subtleties. However, none of these real estate persons is necessarily an appraiser, certified by an appraising institute or perhaps having a state license as an appraiser. In some states—Connecticut is one of them—only an appraiser may express an opinion on property values.

8.12.6 Create Your Own Property Values Study—The Hopengarten Technique My position is that, instead of relying on an appraiser, the best way for an applicant to prepare for a public hearing is to prepare his or her own exhibit using public data. This can be a lot less painful than you might think. This approach to the question of property values rests on several assumptions: ●

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Public records, such as those of the Town Assessor, are entitled to the presumption of regularity. That is, a Board may presume that assessments are not prejudiced and were prepared by a neutral party. Since the data were produced long before your controversy came along, no one can say that it was produced with a view toward how it would impact the present case. An assessor’s data may be introduced without bringing the assessor to the hearing, simplifying the applicant’s life. In a typical town it is possible to avoid the charge of “specially selected data” simply by obtaining the data for every radio antenna system in town. It is hard to charge that you were selective when you have been exhaustive. If your city or town is so large that this is impossible, simply reduce the area of search and be exhaustive within that area (presumably the village or section of town around the applicant’s property). If there is one especially well-known antenna installation in town, be sure to gather the data for that one (or two, if there are two prominent installations), since such installations may come up in the course of the evening’s discussion.

8.12.7 Drive by and Photograph If you see an antenna system, take a photo. Be sure that the photo fairly represents what you see when you are driving around the neighborhood. Don’t try to take a photo that makes the antenna look too prominent, since this will be used against you (as in, “Oh my gawd, it’s going to look like that?”). On the other hand, don’t try to minimize the antenna in the photo, since this will also be used against you (as in, “No wonder that antenna didn’t impact value. In this photo, you can hardly see it!”). Do take the photo in landscape mode (not portrait mode). For locations that do have antennas, make a note of the addresses of the neighbors and the names on their mailboxes. This is not completely necessary, since the information should all be available back at the assessor’s office, but it will make you feel a lot more comfortable when you are trying to look up the records. If you want to go that extra step, make a note (perhaps supported by a photo) of whether

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the antenna can be seen from a particular address. This is in preparation for the “But you can’t see the antenna from there” argument. However, I’ve never seen this discussion go to that level of detail in a public hearing.

8.12.8 Visit the Assessor Start with the assessor’s Index Map. This will tell you which sectional map you’ll need. Let’s assume you want map B12. Go to map B12 and find the location of a commercial antenna. Now note the names and addresses of the abutters, as well as the name and address of the house (or houses) across the street. Now go to the cards for those houses or, in a more modern office, to the computer in the public area. You will normally be looking things up by address. Fill out your spreadsheet. If the house has changed hands during the period you are studying (more likely if you look back 10 years than 5), use the name of the current owner on your spreadsheet. By the way, you are just keeping the name of the owner for your own convenience. Don’t use it on the spreadsheet you eventually submit, as names just result in unnecessary and wasted time discussing the special circumstances of that house. Don’t be concerned or intimidated about asking the assistant in the assessor’s office for the information you seek or for help in gathering it. That’s what he or she is paid to do. And, trust me, she doesn’t care why you are there. You likely won’t be asked what you are trying to prove. However, if you are, just reply: “Oh, it’s nothing much. I’m just trying to get a feel for the neighborhood.” There is no need to tip off anyone about what you are trying to do. Most people doing this type of research are trying to get their assessments lowered—and they are usually angry. Be pleasant, and you’ll be ahead of the crowd in the estimation of the people behind the counter. Examples of such a collection of data appear in the work of W1UK, Coventry, CT; K1NU, Andover, MA; and K1IR, Sudbury, MA. They are available on the CD as filenames W1UK Assessments.pdf, K1NU Assessments.pdf, and K1IR Assessments.pdf and in Excel spreadsheets with the same base names. Note the differences between them. Dr. Leonard Kay, K1NU, did not compare neighboring homes to the town as a whole. Instead, he determined the change in value for homes in the neighborhood and compared those with a view of an antenna system to those without such a view. Town-wide data may be surprisingly easy to find, but you may have to root around state sources. To get a sense of home values for 1 year, 5 years, and 10 years where the data are available, try http:// www.zillow.com. Enter an address in the ZIP code of concern, and you may learn the historical data for a particular home, ZIP code, municipality, county, or state. If you are inclined to believe that the presence of an antenna system has an impact on home values, then these documents may show that the presence of an antenna system tends to increase the value of neighboring homes. See what you find in your situation!

8.12.9 Possible Attacks on Your Property Valuation Data The applicant or his attorney may benefit from the experiences of those who have made such presentations. Even if you are good on your feet, it is always useful to know in advance the kinds of

Possible Objections—Aesthetic, Noise, and Nuisance Issues 205 questions to expect. Here are some typical attacks on the property valuation data you present, with reasoned responses. 8.12.9.1 “You Are Not a Real Estate Professional” This is a classic ad hominem (literally, against the person) argument. Suggested response: “It is true that I am not a real estate professional. [If appropriate, add: “However, no one else presenting here tonight is a qualified appraiser either.”] Nonetheless, I have gathered public records assembled by the Town Assessor. So, if you attack my presentation, you are asking the Board to believe that the Assessor is right with respect to all other homes in town and wrong with respect to those located near antennas. I’m sure you’ll agree that this is an unlikely prospect. “You are asking us to believe that the Assessor, in his professional capacity, routinely must be increasing the values of homes near antenna systems—a remarkable thought—because if, as you say, antenna systems negatively impact home values, then the assessments for homes near an antenna system should be lower.” 8.12.9.2 “It’s Just Not True” This is another veiled ad hominem argument. Suggested response: “Assessments by the Town Assessor are entitled to the presumption of regularity. The numbers were created by a neutral party, before this controversy arose. Please note that the assessments presented here have survived the process of appeal, if there was any appeal, indicating at least a passive acceptance of the valuation by even the neighbors of the antenna system. No amount of opinion by townspeople here tonight, or by real estate agents, should give this Board cause to reject actual municipal assessments.” 8.12.9.3 “These Are Not Matched Pairs” Suggested response: “They don’t have to be. The reason for selecting matched pairs is to evaluate absolute dollar values for the selling price of a house. The question here is not ‘How much should this house sell for?’ The argument that opponents have put forward is that the mere presence of a visible antenna system causes a decline in the value of neighboring homes. As measured by a neutral party, the Town Assessor, this is simply not true.” 8.12.9.4 “The Other Antennas Are Lower Than What You Propose” Suggested response: “It is true that those antennas are lower. That’s why they are more visible and why they should impact home values more, if the charge that antennas impact home values were true. Due to what artists call “perspective,” the higher the antenna, the smaller it looks. If you wish, I can show the Board some photographs that illustrate this matter of perspective. But, generally speaking, lower antennas look bigger.” 8.12.9.5 “The Value of Some Neighboring Houses, As Seen in the Assessment, Probably Reflect Homeowner Improvements” Suggested response: “You are absolutely correct. This is even better proof about this topic than mere speculation about value. Spending on a scale large enough to increase the assessment is undertaken

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rationally. The homeowner has demonstrated a belief in the rising value of the neighborhood by investing even more dollars in that neighborhood. To suggest otherwise is to suggest that the neighbor who improved the house was throwing good money after bad.” Think of the Hopengarten maxim of public hearings, “Some evidence always trumps no evidence.” It is not really true, of course, because the Board could legally decide to give your own testimony or studies no credibility whatsoever. Nonetheless, I encourage you to prepare thoroughly for the property values question with some evidence. You can never predict how much effort your opponents are willing to put in or how much money they are willing to spend. If you anticipate a pack of wolves howling at you, you should create your own study based on actual assessments in your town.

8.13 Noise Let’s face it: Towers and antennas don’t make noise. While opponents may protest that “wind will whistle” through a lattice tower or that “flag poles make noise,” those arguments are bogus. There is no whistling, and you may feel free to invite the Board to visit other sites to see if this is true. Issuing an open invitation, knowing where to send the Board to see for themselves, is a great response. Do not attack the idiot who made the claim. Yes, he is an idiot, but consider yourself blessed by your opponent—the claim itself will cause the Board to question the credibility of other overwrought arguments made by the same person. As for the claim that flagpoles make noise, that would, of course, be true of flag poles where the rope for raising and lowering the flag slaps against the pole. By contrast, your feedlines will be affixed. There is one kind of noise complaint to which you should be prepared to respond, however: generator noise. With respect to generator noise, several issues that arise may require thought beforehand: (1) the need to exercise a generator periodically, (2) the question of where noise measurements are to be made (or, putting it in real estate terms, does “the property line” refer to the leased area or the boundaries of the fee simple absolute?), (3) cumulative noise if all of the generators must be on at the same time (i.e., at the time of a power outage), and (4) preemption. While a casual observer may not think about each of these issues, determined opponents may cause the discussion of each.

8.13.1 Exercising a Generator Periodically Most Boards can get beyond this issue when you point out that it is easy to schedule generator testing and routine exercising of the generator during daylight hours. Your control system may even allow you to promise that the generator (sometimes called a “gen set”) will only be exercised on weekdays. As a result of proper scheduling, only one gen set need be on at a time, and the issue of cumulative noise will not arise.

8.13.2 Where to Measure Noise Many noise bylaws are completely separate from the bylaw controlling the installation of wireless telecommunication facilities and were written without gen sets in mind. As a result, no one was

Possible Objections—Aesthetic, Noise, and Nuisance Issues 207 thinking about the fact that the compound surrounding a tower (the leased area) may only by 100 ⫻ 100 feet (or even less). This raises the question of whether you measure noise at the boundary of the leased area or the boundary of the total property, of which the leased area is but a small part. The best approach is for an applicant to take the position that measuring noise at the boundary of the largest possible parcel is the proper meaning of the ordinance. This matter is fully discussed in the example letter that follows.

8.13.3 Cumulative Noise This is one of those situations where, at the times when the public most wants cellular telephone service, the ordinance, absent a waiver or Variance, may forbid it. This is terrible drafting and may never have been intended by the original draftsmen. Nonetheless, if you face it in your particular ordinance, take pride in the fact that you’ll be providing an immensely popular service at a time when it is most needed—during a major power outage.

8.13.4 Preemption There are no known cases that take the position that a local noise ordinance is preempted by federal law. In the wake of Hurricane Katrina, the FCC convened an expert panel to address communications disaster preparedness. As a result, the FCC issued an order, Order on Reconsideration, Recommendations of the Independent Panel, 22 FCC Rcd 18013, App. B (2007). As described by T-Mobile and the PCIA, The core requirement of the rule is that all carriers have 8 or 24 hours of backup power at every cell site or central facility, with the specific amount depending on the type of network asset. In particular, every wireless cellular and paging carrier (CMRS provider) is required—within no more than 12 months of the Order’s effective date—to have at least 8 hours of onsite backup power (e.g., batteries or generators) or some alternative means of ensuring that the area covered by the site can be served for 8 hours in the event of a power outage.

(See http://www.pcia.com/advocacy/adv_docs/1-7-08_T-Mobile_Response.pdf, which supports a stay of the FCC’s backup power requirements.) This Order creates a federal requirement for backup power, effectively requiring a generator when batteries cannot provide power for a full 24 hours. It could be in direct conflict with local law that might effectively forbid generators due to a noise regulation. However: “The Commission provided exemptions for when compliance with the backup power rule ‘is precluded by: (1) federal, state, tribal or local law; (2) risk to safety of life or health; or (3) private legal obligation or agreement’” (CTIA v. FCC, U.S. Court of Appeals (D.C. Cir.), Docket 07-1475, July 8, 2008; http://pacer.cadc.uscourts.gov/docs/common/opinions/200807/07-1475-1126058.pdf). The backup power rule, at the time this book went to press, had not yet been implemented. Given the exemptions contained within the rule, however, it appears unlikely that a claim of preemption would be successful at this time. Nonetheless, the real need for CMRS and broadcast services in time of emergency would seem to be a good reason to ask for a limited waiver of any noise ordinance restriction.

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8.13.5 A Real-Life Example of a Noise Ordinance Problem This real-life example concerns a “Wireless Communications Facilities” ordinance that provided that “[g]round-mounted equipment for personal wireless service facilities shall not generate noise in excess of 50 dB at the property line.” [Emphasis added.] Opponents of the site sought to claim that “the property line” meant the boundary of the leasehold. The applicant took the position that “the property line” meant what it said—the boundary of the property, the boundary of the fee simple absolute. Here’s how the argument went: The Zoning Code uses the phrase “property line” without any qualification or further provision. Section ____ of the code creates certain defined terms, but “property line” is not one of them nor is it defined in the Wireless Communications Facilities code. Section ____ of the Code states: “Where terms are not defined in this article, they shall have their ordinary accepted meaning, or such as the context may apply.” Of course any ambiguity in a written document is held against the drafter, and zoning codes are no exception to the principle. The drafters of the Code had the opportunity to further define “property line” or to assign it a meaning other than its “ordinary accepted meaning,” but no such definition was adopted. It is inconceivable that the “ordinary accepted meaning” of “property line” could ever conjure up anything other than the fee simple boundary of a site. In fact, think of the implications and opportunities for misinterpretation offered if the leasehold notion were applied to a strip shopping site, an apartment complex, or other site with multiple leasehold estates. How would yard setbacks and the various other dimensional requirements enumerated in the Code be applied when a single fee site might contain dozens of different internal leasehold boundaries? The drafters of the Code did not intend to sow such misapprehension and confusion. Furthermore, such an erroneous interpretation would lead to disastrous results for wireless installations. Most wireless compounds with an area of 40 ⫻ 60 feet, perhaps up to 100 ⫻ 100 feet, define their leasehold estates along a fenced boundary. Often, equipment shelters and generators are placed along those fence lines, with little extra space. In such installations, no installation would ever be compliant, no matter how severely equipment sound was muffled. It is doubtful the drafters of the Code intended to prevent standard installations when they specifically wrote “50 dB at the property line” as the noise standard for wireless installations. Good argument, eh? It was successful.2 As to how noise at the property line can be predicted, that is the province of consultants. Modeling Specialties, of Westford, MA, has created a complete consultants report, representing the type of work routinely produced in such situations, and granted permission for it to be reproduced on the CD accompanying this book; see filename Modeling Specialties Noise Report.pdf.

8.13.6 Engineering Solutions While this book is all about zoning law, do not forget that sometimes an engineering solution may come to the rescue. Always consider additional cowling, additional mufflers, placing a dirt berm with 2

The original author of the argument asked to remain anonymous and to protect the name of his client. For this reason, the attorney, client, town, and bylaw numbers are not reproduced. Parts of the argument were rewritten.

Possible Objections—Aesthetic, Noise, and Nuisance Issues 209 bushes for decoration (or other noise barrier) in the direction of greatest concern, aiming the exhaust system upward (instead of horizontally), installing special louvers, or creating a long and winding exhaust path. As to the latter, remember the theme song of the acoustical engineer: “Sound doesn’t like to turn corners.” If you can create a sound path that goes through a lot of dirt and turns a lot of corners, exhaust gases may escape without being accompanied by exhaust noises. Acoustical engineers have many cards to play. They can help.

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C HA P TER 9

Possible Objections—Environmental Issues

We live in an age of environmental litigation. Fortunately, you will not be bitten by a snail darter. In fact, you will probably not even be worried about the existence or nonexistence of a snail darter at your place. Except for wetlands, buffers to wetlands, or some other special circumstance, you will not be required to do anything with respect to the environment. You may not even be required to file anything to comply with the National Environmental Policy Act of 1969 (NEPA). An environmental assessment (EA), to be filed with the Federal Communications Commission (FCC), is required only in eight environmentally sensitive situations (47 CFR §1.1307(a)), or for radiation in excess of Office of Engineering Technology (OET) 65 guidelines (47 CFR §1.1307(b)). Here’s an overview of compliance with NEPA, adapted from the FCC website:

Compliance with Commission’s Rules Implementing the National Environmental Policy Act of 1969 This document is prepared by the Wireless Telecommunications Bureau’s Commercial Wireless Division to assist wireless service carriers understand the Commission’s Rules implementing the National Environmental Policy Act of 1969, 42 USC §4321et seq. This document is intended to serve as an informal guide only, and is NOT INTENDED to revise or replace the rules contained in Subpart I, Part 1 of the Commission’s Rules (http://wireless.fcc.gov/rules.html), 47 CFR §§1.1301 to 1.1319. Attached are answers to some frequently asked questions received by the Commercial Wireless Division (http://wireless.fcc.gov/siting/npafaq.html). These answers are general in nature, and do not necessarily represent the opinions of the Commission or any individual Commissioner. Furthermore, the Bureau’s positions reflected in these general responses may not apply to your individual factual circumstance. Please contact the Bureau’s Commercial Wireless Division at (202) 418-0620 for more questions on these compliance issues. National Environmental Policy Act (NEPA) NEPA is the basic national charter for protection of the environment. It requires all Federal agencies to implement procedures to make environmental consideration a necessary part of an agency’s decision-making process. Specifically, NEPA and the regulatory guidelines established by the Council on Environmental Quality which implemented the Act, 40 CFR §§1500 et seq., require all Federal agencies to take into account environmental consequences when making decisions which could be considered “major federal actions.”

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As a licensing agency, the Commission complies with NEPA by requiring our licensees to review their proposed actions for environmental consequences. Our rules implementing NEPA are found at Title 47 of the Code of Federal Regulations, Part 1, Subpart I, rule sections 1.1301 to 1.1319 (http://wireless.fcc.gov/rules.html). Section 1.1305 of these rules state that the Commission “has found no common pattern which would enable it to specify” any particular Commission action as a “major action” under NEPA. Thus, section 1.1306 of the Rules “categorically excluded from environmental processing” all Commission actions except for those specifically identified in section 1.1307. If a licensee’s proposed action falls within one of the categories of 1.1307, section 1.1308(a) requires the licensee to consider the potential environmental effects from its construction of antenna facilities or structures, and disclose those effects in an environmental assessment (EA) which is filed with the Commission for our review. Section 1.1307 is divided into four parts: 1.1307(a): Lists eight areas or situations which are considered environmentally sensitive and requiring preparation of an EA prior to construction. 1.1307(b): Requires an EA if the antenna transmitter would cause exposure of workers or the general public to levels of radiofrequency (RF) radiation in excess of certain guidelines. These guidelines were recently revised. See Report and Order in ET Docket No. 93-62, FCC 96-326 (http://www.fcc.gov/ Bureaus/Engineering_Technology/Orders/1996/fcc96326.txt, released Aug. 1, 1996). 1.1307(c): Allows “an interested person” to petition the Commission to require environmental consideration in its decision-making process where such analysis would not otherwise be required by the rules. The petition must be in writing and detail the reasons justifying such an analysis. The Commission then reviews the petition and will either require an EA or it may proceed without an environmental analysis. 1.1307(d): Allows the Bureau responsible for processing an action which may otherwise be excluded from an EA, to require environmental consideration of that action upon its own motion. Wireless Telecommunications Bureau’s EA Review Process If, after consulting the NEPA rules, a wireless service provider determines that its proposed service facility project does not fall under any of the listed categories in section 1.1307, section 1.1306 states that the licensee may proceed with the project without providing any documentation to the Bureau. Both FCC Form 601 (Application for Radio Service Authorization, http://www.fcc.gov/formpage.html#601) and FCC Form 854 (Application for Antenna Structure Registration, http://www.fcc.gov/formpage.html#854) contain question 28, which asks whether the licensee’s proposed action may have a significant environmental effect requiring an EA. If the licensee indicates “NO” to this question, no environmental documentation is required to be filed with the Commission. However, the licensee should maintain all pertinent records and be ready to provide documentation supporting its determination that an EA was not required for the site, in the event that such information is requested by the Bureau pursuant to section 1.1307(d). If, after consulting the NEPA rules, a licensee determines that its proposed construction does fall under one of the listed categories in section 1.1307(a) or (b), the licensee is required to notify that fact to the Bureau. The licensee must answer “YES” to question 28 on either FCC Forms 601 or 854 and attach an EA to the form filing. Once this question is answered “YES,” the filing is treated as a “major environmental action.” Questions on how to file an FCC Form 601

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should be addressed to the Commercial Wireless Division, Broadband Branch, (202) 530-6008. Questions on how to file an FCC Form 854 should be addressed (202) 418-1513. The Bureau’s review of a major environmental action consists of the following stages: Initial Review: When an EA is received by the Bureau (attached to either a Form 601 or a Form 854), the appropriate licensing office initially reviews the complete filing to determine whether the proposed antenna facility complies with any FAA height, location, lighting and marking requirements, AM station interference coordination or other engineering requirements, or any other non-environmental concerns. Acceptance Public Notice: The licensing office then places the filing on the Commission’s Public Notice (PN) for thirty days, indicating that the application was accepted for filing as a “major environmental action.” The PN indicates the licensee’s name, call sign, the market, FCC file number, the date on which the application was received, and the specific section of the 1.1307 category invoking the need for an EA. Review: The EA is then reviewed by the Bureau’s Enforcement Division, along with any comments, petitions or opposition filed against the EA during the 30-day PN period. Finding of No Significant Impact: If, after consulting with all relevant expert federal and state agencies, the Enforcement Division determines that the proposed project will not have a significant impact upon the environment, the Enforcement Division issues its finding of no significant impact (FONSI). The licensing office then notifies the licensee that the application has been granted and issues another PN announcing the grant of the application. Finding of Impact: If, after consulting with all appropriate agencies, the Enforcement Division determines that the proposed project will have significant impact upon the environment, it informs the licensee of this finding. Pursuant to section 1.1308(c) of the Commission Rules, the licensee is afforded an opportunity to amend its proposal to reduce, minimize, or eliminate environmental problems. If the licensee’s amended application resolves the negative environmental impact, the Enforcement Division issues a FONSI and the application is granted. If the amended application does not eliminate the environmental problem, the Enforcement Division will either recommend the denial of the application or will work with the applicant to proceed with the project upon preparation of an environmental impact statement (EIS). Should the Bureau decide to proceed with the action, sections 1.1314, 1.1315 and 1.1317 require a notice of intent that EISs will be prepared, then a draft and final EISs be prepared and announced in the Federal Register. (Source: http://wireless.fcc.gov/siting/npaguid.html)

NEPA Questions Frequently Asked by Licensees The following are questions the Commercial Wireless Division frequently receives concerning NEPA and EA preparation. The Q&As will be updated regularly as more information becomes available. Please contact the Commercial Wireless Division at 202-418-0620 for additional questions you may have on this topic. Q. Is it necessary to hire outside environmental consultants, scientists, archaeologists or historians to comply with these rules? A. Nothing in the Commission’s Rules require that you hire these outside specialists, although it may be easier and more cost effective in the long run to let such experts assist you in handling this area of compliance.

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Q. Which government agency or office can assist us in determining whether or not a proposed construction may require an environmental assessment (EA) under section 1.1307? A. Because the Commission is not an expert agency on environmental matters, in evaluating our licensees’ environmental assessments prepared and filed pursuant to NEPA, we defer to the opinions or judgments of other agencies with expertise over a particular subject matter. These agencies can also assist you in determining whether your proposed construction may affect the areas over which the agency has jurisdiction, and they can offer suggestions on how to mitigate any impact upon the area. The federal and certain state agencies with expertise and jurisdiction over each of the categories in section 1.1307 are as follows: Wilderness Area: U.S. Department of Interior (http://www.doi.gov/) Wildlife Preserve: U.S. Department of Interior (http://www.doi.gov/) Endangered Species: U.S. Department of Interior, Fish and Wildlife Service (http://www.fws.gov) Historic Site: Advisory Council on Historic Preservation, State Historic Preservation Office (http://www.achp.gov) Indian Religious Site: American Indian Tribes, State Historic Preservation Office Floodplain: Federal Emergency Management Agency (http://www.fema.gov) Surface Features: U.S. Army Corp of Engineers (http://www.usace.army.mil) High Intensity Lights in Residential Neighborhoods: Federal Aviation Administration (http://www.faa.gov) Excessive Radiofrequency Emission: Federal Communications Commission’s Office of Engineering and Technology (http://www.faa.gov/oet) Q. Should any state or local government agency also be contacted to determine the environmental effects of a situation listed under section 1.1307? A. Yes. You should always contact any and all state and local government offices with responsibility over the effected area, as some of these offices share jurisdiction over the area with a federal agency. In addition, some states have environmental laws and regulations which may be more stringent than federal standards, and you must comply with all relevant laws in addition to the Commission’s NEPA rules. Q. What is an EA? What does it look like? How long should it be? How can we obtain a sample of a good EA? A. An EA is a document which, among other purposes, serves to assist the Bureau staff understand the environmental effects of the licensee’s proposed construction. Thus the document should contain all relevant information necessary for the Bureau staff to make a determination on the extent of negative impact the construction may have upon the area. Rule section 1.1311 details what should be included in an EA. It is always helpful to include as attachments, copies of all relevant correspondence with and permits or authorizations issued by the local or state officials concerning the proposed project. As publicly filed documents, all EAs are available to the public at the Bureau’s Public Reference Room, located at FCC Headquarters, Room CY-A257, 445 12th Street SW, Washington, DC 20554. For more information, you may contact the Reference Room at (202) 418-0270, Monday through Thursday from 8:00–4:30PM EST and Friday from 8:00–11:30AM EST.

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Q. Should the EA address all the categories even if only one or two of those listed categories are actually effected? A. Yes. The EA should be comprehensive in its analysis by discussing the reasons why a particular category is effected as well as the reasons why other categories are not effected by the proposed action. The substantial portion of the analysis, of course, should address the categories which are effected by the proposed construction. Q. What is a “floodplain” referred to in section 1.1307(a)(6)? Is there a difference between a 100-year and a 500-year floodplain? A. According to Executive Order 11988 referred to in section 1.1307(a)(6), a floodplain is defined as the “lowland and relatively flat area adjoining inland and coastal waters . . . including at a minimum, that area subject to a one percent or greater chance of flooding in any given year.” This definition is often referred to as a “100-year floodplain.” The Federal Emergency Management Agency (FEMA) is the administrator of the National Flood Insurance Program, and the federal agency having lead responsibility for flood hazard assessment and mitigation. FEMA has adopted the 100-year floodplain as the base flood standard for NFIP as that agency is mainly concerned with construction which could potentially harm a 100-year floodplain, rather than a 500-year floodplain, which is an area that has a 0.2 percent chance of a flood in a year. However, FEMA is also concerned with any construction in a 500-year floodplain if the proposed project is considered a “critical action.” A “critical action” is defined as any activity for which even a slight chance of flooding is too great. Relying upon FEMA’s guidelines, this office understands the term “floodplain” as used in Section 1.1307(a)(6) to refer to either a 100-year floodplain, or a 500year floodplain subject to “critical action” characterization. However, to fully understand these terms and concepts, it is advised that you review FEMA’s Further Advice on Executive Order 11988 Floodplain Management, and the U.S. Water Resources Council’s Floodplain Management Guidelines for Implementing E.O. 11988, published on February 10, 1978, at page 6030 of volume 43 of the Federal Register. Q. Since the Commission issued its NEPA Rules in 1986 with certain amendments thereafter, are the structures built prior to 1986 exempt from compliance, or must the existing structures be re-evaluated now for environmental compliance? A. NEPA is a federal policy directive aimed at producing quality agency decisions that take into consideration environmental consequences. NEPA does not set a time frame in which to come into compliance with the law as environmental problems can change with time. Thus, even if you have never filed an EA on a structure because it was constructed prior to 1986, you are required to come into compliance now, under the environmental conditions of the structure as it exists today. Keep in mind, however, that coming into compliance with the NEPA Rules may not require you to file an EA if the conditions under which your structure stands today does not involve any of the categories listed in 1.1307. It simply requires you to conduct a field investigation on the structure to be sure that no negative environmental problems exist today. (Source: http://wireless.fcc.gov/siting/npafaq.html)

For an actual NEPA compliance filing, demonstrating why you shouldn’t leave this to amateurs, see filename Sample NEPA Screening Raw Land.pdf on the CD. This document also proves that there are careers for liberal arts graduates.

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9.1 Danger to Birds Someone may claim that the proposed structure is a danger to birds. Whether or not you believe that inquiries on this topic emanate from someone who is looking for a reason, any reason, to complain about your proposed antenna-support structure, you must still treat the objection seriously. In any event, listen carefully to the question or complaint.

9.1.1 Specific Birds Sometimes you get lucky. In a 1996 complaint by a neighboring golf club against Steven Fraasch, K0SF, a radio ham, the complaint was that the Fraasch tower (130 feet tall) presented a danger to Trumpeter Swans. The case was tried in District Court, Hennepin County, Minnesota. The Judge made the following findings of fact:

¶ 9. Plaintiff presented the testimony of Dr. James A. Cooper, an Associate professor of Wildlife at the University of Minnesota. Dr. Cooper testified that there is no known evidence of Trumpeter Swans nesting in the Goose Lake area. In fact there have been only two documented instances of Trumpeter Swans in the Goose Lake area over the past fifteen years. ¶ 10. Dr. Cooper testified that he was not aware of a single example of a Trumpeter Swan colliding with an amateur radio tower or the guy wires extending from radio antennas. ¶ 11. The Fraasch tower does not present the potential for significant environmental effects upon birds, including the Trumpeter Swan, which may visit the Goose Lake area. ¶ 12. Potential damage to Trumpeter Swans caused by the Fraasch tower is wholly speculative.

A complete copy of the Fraasch case may be found on the CD as filename Fraasch Trumpeter Swans.pdf. Here’s your take-away lesson. Try to force the opposition to specify exactly which species of bird they seek to protect. Of course, the less time the opposition has to prepare a response to such questions, the more likely the opposition is to get it wrong.

9.1.2 The Catastrophe Anecdote If you haven’t heard it already, you will inevitably hear the story about the largest tower-related bird kill in history. Supposedly, 30,000 birds were killed at a tower in Eau Claire, WI, on the nights of September 18 and 19, 1963. Here are just a few of the occasions when this story has made an appearance: The biggest reported bird kill was 30,000 birds at the Eau Claire, Wisconsin, telecommunication tower on the nights of 18–19 and 19–20 September 1963 (Kemper, 1964). (Source: Environmental Impact Assessment Report, http://www.epd.gov.hk/eia/register/report/ eiareport/eia_0822002/EIA%20main%20report/Appendix/appendix%209b.pdf.)

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During 18–20 September 1963, extraordinary numbers of migrating birds passed through the Minnesota–Wisconsin area. At an Eau Claire, Wisconsin, tower, over 10,000 birds (45 species) were collected; total mortality was estimated at over 30,000. (Source: Green, J.C., Fall migration: western Great Lakes region, Audubon Field Notes, 18(1), 33–34, 39–42, 1964; cited in http://www.awea.org/smallwind/toolbox/windzone/wildlife.htm.) An estimated 30,000 birds were killed at the Eau Claire, Wisconsin, tower on the nights of 18 and 19 September 1963. Lists of the 10,195 birds (56 species) actually collected and of 924 birds (47 species) killed on 20–21 September at Lewisville, Minnesota, are given. To explain the mass mortality of birds at towers, a theory is proposed in which migrants attempt to maintain a constant bearing with respect to the red tower lights (perceiving them as stars) and spiral closer to the structure, eventually striking guy wires. (Source: Kemper, C.A., A tower for TV: 30,000 dead birds. Audubon Magazine, 66(1), 86–90, 1964; cited in http://www.awea.org/smallwind/toolbox/ windzone/wildlife.htm.)

If you look closely, these reports refer back to a single report by one man, C.A. Kemper. He must have been an interesting man. Anyone facing a case in which this anecdote is cited should spend a lot of time to learn more about him. Charles A. Kemper, M.D., was a graduate of the University of Maryland Medical School. He described himself as a small-town doctor and “bird bander” (http://www.wsobirds.org/speakers_2007.pdf). For 20 years, he was the editor of The Passenger Pigeon. Here is a description of that journal (http://digicoll.library.wisc.edu/EcoNatRes/subcollections/PassPigeonAbout.html):

The Passenger Pigeon is the official scholarly publication of the Wisconsin Society for Ornithology, an organization of both professional and non-professional ornithologists dedicated to the study of Wisconsin birds. First published in 1939, the quarterly journal features a wide range of original information about Wisconsin birds and their habitats, including seasonal field reports, results from annual Christmas bird counts, descriptions of May and Big Day counts, and scientific research articles. Contributions include reports from birders throughout the state on unusual and interesting sightings and historical accounts from and about prominent Wisconsin naturalists. Editorial comments from officers in the Wisconsin Society for Ornithology are provided regularly.

As both the author of the article reporting the largest reported bird kill of all time in the United States, and as the editor of the journal in which it was reported, one supposes it would be unfair to call The Passenger Pigeon a “peer-reviewed journal.” It might also be unfair to characterize it as “scholarly.” But, with all those reports for which he is responsible, whether we’re talking about 10,000 or 30,000 birds killed in a single night, or even a few nights together, are there any photographs? Did anyone ever give thought to the size of the mound, given all those carcasses? Were others brought in to confirm findings? Those are all interesting questions. If you ever go to trial in one of these matters, a wellprepared lawyer will have a lot of fun with cross-examination.

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We begin by referring to the cumulative study by Charles Kemper, “A Study of Bird Mortality at a West Central Wisconsin TV Tower from 1957–1995.” It may be found at http://digicoll.library.wisc. edu/cgi-bin/EcoNatRes/EcoNatRes-idx?type⫽turn&entity⫽EcoNatRes.pp58n03.p0019&isize⫽ M. Kemper writes, at page 224, that: “Red-eyed Vireos (REV) are the most numerous for all seasons.” So, let’s do a little calculating. According to Wikipedia, the red-eyed vireo (Vireo olivaceus) is a small American song bird, 13 to 14 cm in length. Using another source (http://www.birds.cornell.edu/AllAboutBirds/BirdGuide/Red-eyed_ Vireo.html), we discover: •

Size, 12–13 centimeters (~5 inches)

•

Wingspan, 23–25 centimeters (9–10 inches)

•

Weight, 12–26 grams (0.42–0.92 ounces)

Now, to be very conservative, do not assume that there were 30,000 birds killed, but perhaps 12,000 (pick your own number and do your own math). 12,000 ounces (oz) divided by 16 oz in a pound (lb) ⫽ 750 lb. At 0.5 oz per bird, that’s 375 lb. However, if you believe the 30,000 bird number, at 0.67 oz per bird (the arithmetic mean of weight), that would have been 1,256.25 lbs of birds. Where did all those birds go? Speaking more generally, can an opponent produce photographic or video evidence of large bird kills from anywhere in the literature? Have any of these studies describing massive bird kills been replicated? Fred Baumgartner’s 2003 Radio World article, “The Tower-Kill Bird Massacre Myth,” perhaps conflating the 1963 report with the author’s 1974 experience, does bring to mind some relevant questions.

The Author Says This Particular Legend May Be a Big Flap Over Nothing [I grew up] in Eau Claire, Wis., home of the so-called “worst bird tower-kill incident of all time.” . . . I believe my experience (or more precisely, the lack thereof) with the incident gives me the opportunity to ask some pointed questions about the veracity of the tower-kill story. . . . In 1974 an Eau Claire tower reportedly killed 30,000 birds in a single night. Eau Claire does have one large tower, about 1,100 feet, belonging to WEAU(TV). By 1974, the TV station transmitted from a 2,000-footer 30 miles to the south. There was, and I believe still is, a 14-bay FM, belonging to WBIZ(FM), and a series of RPU, STL, two-way and other antennas on the tower. While the reports never say which tower, it’s hard to imagine any other. Likewise, the type of bird(s), if mentioned, is usually reported as “song birds.” Towering Insanity . . . I’m proud to call Eau Claire my hometown. I graduated from E.C. Memorial High School in 1973 and spent my freshman year at the University of Wisconsin–Eau Claire, working part-time as a very bad DJ and neophyte technician at, you guessed it, WBIZ, whose antenna was on said tower.

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Worse, I was messing with ham radio and constantly biking over to Bushland Radio Specialties, located next to the Tower Bar, both less than a stone’s throw from the base of said tower. I can’t remember if it was fall or spring 1974, but I do remember the story of the bird kill on the 10 o’clock news. They couldn’t have missed it, as the TV studio isn’t too much farther than the bar is from the tower, and the 16-foot studio door was always open outside in lieu of air conditioning. As I recall, it involved migrating geese (the Bob Dylans of songbirds, I suppose) on a foggy night. I recall the use of the word “dozens,” but never “30,000” until years later. Geese are fairly big birds, and travel in a distinctive “V” formation. As a kid, we counted the geese, and about 100 to 200 in each formation is normal. Stunt Geese Having 150 to 300 of these formations, each competing for flight plans to achieve a near 100 percent fatality rate in one foggy night seems somewhat unbelievable to me. Paint yourself a mental picture of all these formations of geese, a quarter-mile across, flying away from the tower, regrouping in the fog, rotating slowly around an imaginary pivot point miles away, relocating the tower (all the while out of sight) and making run after suicide run, each pass picking off a few birds at a time. And why only in 1974? Why not every year, or every 10 years? Did tower avoidance become part of the survivors’ genetic memory? Certainly the weather conditions that lead to this disaster have been repeated somewhere within the last quarter century. A compressed goose takes up a good half a cubic foot—a bit smaller than the famed WKRP frozen turkeys. I don’t recall seeing, hearing or hearing about the 160 or so 10-yard capacity dump trucks that would be needed to haul them away. Certainly this would have made the National Enquirer? Gee, if it took 4 hours, that’s 120-bird collisions and falls per minute, a “stranger than science” 4-hour-long dead-bird blizzard in the fog. The stress on the tower had to at least damage the radomes and lamps. Calculating in the spread pattern, the roof and car damage would be notable, too. A limp goose hitting the windshield of a car from an 800-foot power dive is serious, and Hasting’s Way, directly below, is a 35-mph, four-lane, heavily traveled major highway (U.S. 53). Certainly, as the density of dead birds and disabled cars built up, traffic would have ground to a halt. The average car at the bar (and there would have been about a dozen) would take two hits. Across Hasting’s way, Wagner’s Bowling Alley surely would have had its 50 or so patrons up in arms. And Roland Bushland, who gave me good prices on things like caps and tubes, didn’t have anything to say about it, and I worked for his FM station most of 1974. Heck, Roland even had pictures of significant snowfalls tacked up on the wall in the sales area—a pile of birds would have fit right in. He would have talked about this for years even if his camera didn’t work. It is possible the geese locked their wings and glided to the horizon . . . but then they would be a mile from the tower and the affected area would be even bigger. I’m not having a lot of trouble with the idea of 30 or even 300 birds that could have died in one night in 1974, although in my entire life around towers, I have yet to see even one tower-killed bird. It’s the 30,000 I need explained.

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Surely there must be some article about it in the Eau Claire Leader Telegraph. Heck, half the kids in my UW-EC journalism classes had to scratch to string stories for 3 cents per printed line to get class credit. Someone must have taken a picture, driven the dump trucks or left the Tower Bar to slog through a wall of dead birds and remembered it. It’s not the kind of thing you forget. It would be at least as memorable as that Hitchcock movie, “The Birds.” . . . The Real Predators I have, however, watched birds of prey work from a tower, killing off small furry mammals and tiny birds day after day. The 150-foot perching point probably gives birds an unfair advantage. I have had barns for some time, and I’ll testify that barn cats are very tough on birds, and cars, too. Honestly, each cat we’ve had surely dispatched more birds than all the towers I’ve worked with, tall and short, lighted and not. I’m not sure what part of the food chain I should prefer this week. Even so, my wife and I have a dozen cat-proofed bird feeders and two birdbaths on our place, which we call Whippoorwill Farm. The ham tower and long wires are play toys to the birds. The birds are tougher on the antennas than the antennas are on the birds, from what I can see. Extraordinary claims require extraordinary proof. Let’s see the cards. Bottom line? I sincerely doubt that the “biggest bird kill” ever happened. Proof should be easy to come by. Crop circles, cattle mutilations and tower bird kills sure look a lot alike from here. . . . (Source: http://www.rwonline.com/reference-room/special-report/06_wrf_Feb1_part_1.shtml.)

9.1.3 Birds and Towers: Research and Litigation Extensive research has gone into the questions of how many birds may have been killed by towers and why. The Fish and Wildlife Service (FWS) of the U.S. Department of Interior has commissioned studies. In March 2000, the Office of Migratory Bird Management (who knew you could manage bird migrations?) at FWS released “Avian Mortality at Communications Towers: A Review of Recent Literature, Research, and Methodology,” prepared by Paul Kerlinger, Ph.D., Curry & Kerlinger, LLC, Cape May Point, NJ. A copy may be found on the accompanying CD, filename Avian Mortality.pdf, and is available on the FWS website (http://migratorybirds.fws.gov/issues/towers/review.pdf). For other work from that firm, see http://www.currykerlinger.com/studies.htm. In 1999, Bill Evans, for the Cornell University Laboratory of Ornithology, organized a scientific conference called “Avian Mortality at Communications Towers.” It was held in conjunction with the annual meeting of the American Ornithological Union. Watch out for this, as an unethical opponent might take some unsupported claim made at that conference by an attendee and stand up in a hearing to say something like: “As Cornell University has reported. . ..” You may be assured that the University did not endorse any of the claims made at the conference, many of which are available in the conference proceedings at http://www.towerkill.com/activism/workshop/index.html. Speaking of Bill Evans, he originated the Towerkill.com website. If you’ve ever wondered whether that site is a purely neutral collection of data or have had other questions about it, you might enjoy this report from Evans.

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Backroads of a Night Flight Call Researcher: Part II by W.R. Evans [H]ere is the update on the towerkill situation that I had promised our esteemed editor. Towerkill.com, a website I started with Bernie Guirey (Verbosa brutalii) back in April of 1998, is still percolating through the web at a good clip, serving 3000 pages a week. It peaked for a few weeks this summer at over 1000 pages per day when Popular Science ran an article on the towerkill issue and included the URL. The continued steady traffic is totally amazing to me since the bulk of the site has remained unchanged since we put it up. The issue has survived and matured through an ascending concatenation of events. The tinderbox of unbridled tower construction, declining songbird populations, and a bloated 800⫹ billion dollar a year broadcast and communications industry was ripe for a spark in late 1997. The serendipitous 5000–10,000 Longspur massacre in Kansas in January of 1998 catalyzed the blaze. Grassroots activism by former National Audubon policy office employees and the American Bird Conservancy brought the issue to the Ornithological Council (policy arm of NA ornithological societies) in the form of a resolution in April of 1998 at the North American Ornithological Congress in St. Louis. Representatives from the four major ornithological societies in North America unanimously passed the resolution. A key point in its legalese was the request for the U.S. Fish and Wildlife Service to address the problem with the FCC and FAA. This gave the FWS the support it needed to put resources toward the issue. Skilled FWS negotiators brokered a union of the key “stakeholders” and after a year of meetings in DC there is now a fairly well-rounded mechanism to foster towerkill mitigation research. Meanwhile, the industry has been churning away building towers. The irony in the whole matter is that it appears the big 1000⫹ towerkills are not happening much anymore. The biggest single-night kill we have documented in the past three years of the informal New York State Towerkill Survey is ~65 birds (though only 40% of the tower’s perimeter was surveyable). The five long-term towerkill studies around the continent all concur that towers that once killed thousands of birds per year are now only killing hundreds. This has apparently convinced some ornithologists that the problem is not a problem anymore. A few years back I received an email to the towerkill.com website from a guy on a Navy vessel in the Gulf. He had written me about a night when a huge swarm of migrants circled their lighted Navy vessel all evening. He found many dead birds on the deck in the morning and speculated about the hundreds that must have gone into the Gulf. He was concerned about the effect lighted oilrigs might be having on trans-Gulf migrants. With 4000⫹ oilrigs in the Gulf, one would think that it would not be a good thing to have lights on the rigs because huge swarms of migrants might circle the rigs all night instead of making progress across the Gulf. And, of course, they have no place to refuel out over the open water—there very likely has been massive mortality associated with the rigs in the past. Anyway, I forwarded the email to the now head Louisiana State University (LSU) researcher of the Migration Across the Gulf Project, the project that places topnotch birders on oilrigs to document the species composition and numbers of migrants. We inquired about whether they had considered the effect the lights on the oilrigs might have on night migrating songbirds. Their website on the project did not indicate they were looking into this. Well, we hit a nerve and a minor brouhaha evolved. This LSU researcher was afraid of getting his funding pulled if we broadcast our concern [in his mind unproven] about the oilrig mortality. He said he believed the rigs might actually help migrants by giving them a place to rest during their crossing. During the ensuing fray of email, this LSU researcher said that towerkill is not a problem anymore and suggested that birds were adapting to the situation. Surprisingly, this notion has come up from other sectors of the ornithological community. Among the folks who have been active in the towerkill issue the past two years (FWS’s National Communications Tower Working Group), we

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call this attitude BIRD 22 (in analogy to the novel Catch 22). Catch 22 is a term coined by Joseph Heller and the title of his Vietnam War1 era novel that depicts the twisted truth that you can’t get out of the army by acting crazy because you are sane to want to get out of the army so therefore you can’t be crazy. Here, the metaphor translates somewhat to the fact that once bird populations have been sufficiently wiped out, there won’t be a problem with birds hitting towers or expending their fat reserves flying around oilrigs all night, so there won’t be a reason to do anything about it. Kids will just grow up with fewer cool birds and that will be the way their world is. At this point, I ask the reader to consider whether deer might ever adapt to heed a warning from auto headlights. Keep in mind there have been six motorcycle/deer accidents alone in Tompkins County already this year. It is therefore, for me, almost beyond the realm of possibility to think that birds may have adapted to towers in 40 years. More likely the lower towerkill mortality is due to two factors that now result in fewer birds congregating around towers on cloudy migration nights: 1) lower continental populations of night migrating songbirds, and 2) the fact that there are now many more light sources for birds to congregate around, thus fewer birds congregating around any one light source. So as hundreds of new oilrigs go up out in the deep Gulf over the next five years and 5000⫹ new towers a year spring up across the U.S. (and at the same pace in Central and South America in due time), the point I’d like to end this essay with is that the crux of the matter is not just about concern for bird populations. It is also about RESPECT for other branches of life on earth. If the average North American is driving down the road and sees a turtle crossing their path ahead, my hunch is that 99% of the men and 99.9% of the women will make an effort to swerve to miss it. Such conscience must, therefore, inherently exist for corporate America to do the same in its various and marvelous machicolations, though I don’t expect it will be the ornithologists on Exxon’s payroll that will champion the coalescence of this conscience toward effective mitigation. Source: http://www.birds.cornell.edu/bcc/cup5.7.html

Avatar Environmental, LLC, released a study to develop the record on how, and to what extent, migratory birds may be affected by the nation’s communications infrastructure. In a section entitled “Conclusions and Recommendations,” Avatar explained that, “Although most of the causes and possible solutions for increased avian mortalities associated with communication structures remain speculative, a few conclusions have been advanced with some degree of confidence within the scientific community studying this problem.” This report is included on the CD as filename Avatar_Bird_Report .pdf; it’s also available at wireless.fcc.gov/reports/documents/avatar-migratory-bird-report10104.pdf. In 2003, the FCC opened a docket on “Effects of Communications Towers on Migratory Birds” (Dkt No. 03-187). On November 7, 2006, the Commission released a Notice of Proposed Rulemaking, available in four parts at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-06-164A1.doc, http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-06-164A2.doc, http://hraunfoss.fcc.gov/ edocs_public/attachmatch/FCC-06-164A3.doc, and http://hraunfoss.fcc.gov/edocs_public/attachmatch/ FCC-06-164A4.doc. On January 12, 2007, the FCC extended time to file (DA-07-72). No one knows when the issue of migratory birds will reach a stable endpoint. Meanwhile, the American Bird Conservancy has been litigating. As described by the Ninth Circuit Court of Appeals: In 2002, American Bird filed a petition with the FCC formally requesting that the FCC consult with the appropriate agency regarding towers in the Gulf Coast region. In 2005, the FCC issued an order 1

Actually, Catch-22 (with a hyphen) was about World War II and first published in 1961—before the Vietnam War.

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denying in part, dismissing in part, and deferring in part American Bird’s claims. In February 2008 the United States Court of Appeals for the District of Columbia Circuit vacated the FCC’s order, bringing American Bird’s claims to a successful conclusion. American Bird Conservancy, Inc. v. FCC, 516 F.3d 1027 (D.C. Cir. 2008).

Another lawsuit was filed by the American Bird Conservancy to challenge an FCC decision to issue licenses for seven communications towers in Hawaii. Presumably seeking to avoid the U.S. Circuit Court for the District of Columbia, where FCC matters are normally heard, American Bird sought to litigate in Hawaii, a jurisdiction where, one guesses, they thought they had a better chance of convincing a court the Endangered Species Act should trump action of the FCC. In a decision dated October 8, 2008, the Ninth Circuit Court of Appeals held that the matter must be brought in D.C. (see http://caselaw.lp.findlaw.com/data2/circs/9th/0615429p.pdf). Here are the take-away lessons. Don’t ignore the Endangered Species Act. Be very careful in filling out forms. If you expect a challenge, bring in a lawyer early.

9.1.4 Towers Under 200 Feet If you review the literature, you’ll discover that, except for the most ardent opponents of towers, there is some support for the proposition that towers at heights less than 200 feet do not pose serious problems to bird populations. In a letter to the author (see Figure 9.1), Massachusetts Audobon Society field ornithologist Wayne Peterson wrote: “Given the heights (less than 200 feet) of these towers, dangers to birds from amateur radio support structures is undoubtedly minimal.” (The full text of the letter is available on the CD as filename Audobon_Letter.pdf.)

9.2 Lighting Now here’s a problem.

9.2.1 None Some groups are enamored of the “Dark Skies Initiative.” Those people are devoted to a concept they call “Kill-a-Light” (see http://www.darkskyinitiative.org/). For those people, lights, or lights with shields that prevent light from drifting downward, are no solution at all. On the other hand, some people favor the concept of preventing airplanes from hitting tall structures.

9.2.2 Shields The Vermont Environmental Board, in a decision affirmed by the Vermont Supreme Court, In re Stokes Communications, 164 Vt 30, 664 A.2d 712 (1995) (see http://libraries.vermont.gov/sites/libraries/ files/supct/164/op94-208.txt), has ruled that light shields could be required on a 303-foot tower, placed on a 93-acre parcel (one acre rented for the tower). The case does include one interesting comment, however: “It is fair to infer from the Board’s comment that it realized the FAA could preempt its light shield requirement.” Thus the Court recognized that the FAA would have the final say on whether light

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Figure 9.1 Letter from Massachusetts Audobon Society field ornithologist Wayne Peterson noting that danger to birds from antenna-support structures less than 200 feet is “undoubtedly minimal.”

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shields could be required. Nonetheless, “[b]ased on Stokes’s representations to the Board, light shields have been manufactured, purchased and installed for use on at least one other tower. There was no suggestion that the shields posed a technological, logistical or financial impediment. Stokes’s expert testified that with installed shields, the tower would comply with FAA regulations and likely receive FAA approval.” Here’s a report of an example proof, although not for a tall communications tower: Medium Intensity Approach Lighting System with Runway Alignment Indicator Lights Baffling Effort Personnel from the Airport Technology R&D Sub Team traveled to Vandenburg, Florida, to install metal shields, or baffles, on the five white strobe lights that make up the Runway Alignment Indicator Lights portion of the Medium Intensity Approach Lighting System with Runway Alignment Indicator Lights (MALSR). Homeowners living near the final approach area of the runway were complaining about excessive light shining on their houses from these fixtures. Project personnel were able to design, construct, and install metal shields that block the light from hitting the ground where the houses are located but do not affect the light needed by approaching aircraft. After the baffles were installed, project personnel used a small aircraft to view the lights from the air to ensure that the changes did not affect the performance of the lights. —Jim Patterson, AJP-6312, (609) 485-4989, 2/15/08. (Source: http://www.airtech.tc.faa.gov/news.asp.)

Readers should understand that we are in the early days of light shields. There is no consensus yet as to their effectiveness, in terms of shielding or cost.

9.2.3 Existing Lighting Local ordinances, such as a proposed Beaufort County, SC, ordinance, often require all towers to comply with newly adopted marking and lighting requirements. Federal law (in the form of FCC and FAA rules) specifically provides that new tower painting and lighting requirements shall not apply to towers built prior to July 1, 1996. Accordingly, local ordinances that require grandfathered towers to comply with new requirements may be seen as preempted and unenforceable.

9.2.4 Is the Subject of Lighting Preempted by Federal Law? Some support exists for a field preemption argument relative to tower lighting and marking. In the Communications Act (47 USC §303(q)), Congress vested the FCC with the “authority to require the painting and/or illumination of radio towers if and when in its judgment such towers constitute . . . a menace to air navigation.” Moreover, the FCC’s Rules interpreting §303(q) confirm Congress’ grant of jurisdiction (47 CFR §17.22): If an antenna installation is of such a nature that its painting and lighting in accordance with these specifications . . . endanger rather than assist airmen, or are otherwise inadequate, the Commission will specify the type of painting and lighting or other marking to be used in the individual situation. [Emphasis added.] (Source: Lemley, C.C. and Carr, B., How federal preemption helps tower owners, Above Ground Level, October 2006; http://www.wileyrein.com/publication.cfm?publication_id⫽13118.)

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9.2.5 Lighting and Birds The FWS guidelines provide: “Unless otherwise requested by the FAA, only white strobe lights should be used at night, and these should be the minimum number, minimum intensity, and minimum number of flashes per minute (longest duration between flashes) allowable by the FAA. Solid red or pulsating red incandescent lights should not be used, as they appear to attract night-migrating birds at a much higher rate than white strobe lights.” However, it is not clear that this guideline was based on field testing.2 Its conclusion appears to be contradicted by recent field work. A well-structured study was created by Joelle Gehring, Ph.D.,3 Senior Conservation Scientist, Zoology Section, Michigan Natural Features Inventory. Her disciplined study, with counts and photographs, shows that both red and white strobe lights result in the lowest number of bird carcasses found during a migration period at the base of towers. Blinking lights were next best. Red, blinking (nonstrobe) incandescent lights, with nonblinking lights on the same tower, were worst (http://www. fws.gov/midwest/greatlakes/windpowerpresentations/gehring.pdf). The bottom line that appears to be emerging from her studies is: Turn off the steady red lights at night. Replace them with red strobes. 9.2.5.1 LED Lighting Note that modern LED lighting does not spread light as much as older lighting. This is an area worthy of further investigation and engineering.

9.2.6 A New Approach to Avian–Tower Interaction A novel idea would be to perform your own study. This would prove useful not only for immediate purposes but also for future situations that you may run into. If you don’t have a standing tower now, you might have to find a local tower owner who is willing to help out. Mount a camera about 5 feet from the top of the tower looking down. Let’s be smart and make sure it is not looking into the rising sun. The farther away from the tower you get, the better so you can see the base, but make sure the base is visible so a small bird-like object is distinguishable. Now figure out a way for this camera to take a picture every day at the same time. (I didn’t say this was going to be easy). A recommended time would be one hour after sunrise (this is close enough to

2

3

One of these days the author will query either the Internet or the FWS, or both, to discover how they came up with this recommendation. Dr. Gehring’s work is both thorough and ongoing. If the question of the best lighting to use in the presence of migrating birds is of interest to the reader, it would be best to check out the current state of her research. In 2007, she was named “Conservationist of the Year” by the Detroit Audobon Society. In 2008, she presented at the Tower Technology Summit (held in conjunction with the CTIA Annual Meeting), and it is easy to predict that her work will shape the field. Here is her resume: Dr. Gehring designed and oversees a multi-year study of the variables associated with bird collisions at communication towers. Research results will provide information on methods to reduce such collisions. She collaborates with the Michigan State Police, Michigan’s Office of the Attorney General, Michigan Department of Natural Resources, U.S. Fish and Wildlife Service, National Fish and Wildlife Foundation, U.S. Forest Service, the FAA, and the FCC. Dr. Gehring is the facilitator for the Solving the Avian-Tower Interaction Committee (STATIC), a collaboration of tower industry representatives and environmental groups working to reach resolution on the issue of avian collisions with communication towers. She completed her doctorate in Wildlife Ecology at Purdue University in 2003. Her research focused on the flight patterns and behavior of red-tailed hawks with direct implications and application to reducing bird-aircraft collisions. Dr. Gehring is also Adjunct Faculty in the Biology Department at Central Michigan University.

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darkness for overnight kills and light enough for a good picture). Perhaps you can program a camera function to make it easy. Store the photos automatically, each day, to a computer hard drive. Review at leisure. Let your summer intern review the previous year’s 365 photos, issue a report and burn the photos to a CD. Start again. Now you have a protocol that could be implemented at a great number of stations and provide scientifically useful information. It would also be a good science fair project. Asking an engineer to take a photo each day is bad protocol. He could forget, he could get sick, he could go on vacation. He’ll never do it the same time each day, and the pictures could get lost. If the Society of Broadcast Engineers (SBE) comes up with a research protocol, somewhat akin to what I’ve outlined here, that would be serious science. So, Mr. Engineer, what’s a practical way to implement it? Below is a series of letters and documents on the subject of bird strikes for you to review. Perhaps one of them will be useful at the hearing if someone should come up with a complaint about birds. (The letters are also on the CD as filenames Fairfax Bird Letter.doc and Fraasch Bird Letter.doc.) The CD also contains a very comprehensive study done for Minnesota Public Radio by Svoboda Ecological Resources, filename Svoboda MPR Radio Tower Study.pdf. Additional information may be gleaned by studying information available from the American Wind Energy Association (http://www. awea.org).

Fairfax Letter From: Steve Fairfax, President, MTechnology Date: Wed, 09 Dec 1998 Subject: Birds Hi Fred; I looked into this several years ago during my stint at Failure Analysis Associates. The basic answer is this: Birds have lightning-fast reflexes and very keen eyesight. They can fly through a thick woods they have never seen, in almost any kind of light or weather, and never touch a branch until they are ready to land. When they are ready to land, they will land precisely on the branch they want. If they are gregarious birds, like crows, that spot is often a matter of inches away from another bird. They can spot an insect or seed from scores of yards away, fly through a maze of branches, vines, and twigs, and land within inches of their target, every time. Why are they so good at this? It’s what they do. They are birds. Their flight control systems have evolved for thousands of centuries and are far more sophisticated and complex than the best mankind has to offer. Birds will almost certainly continue to outperform human aircraft controls for a long time to come. Ham radio antennas, cell towers, telephone poles, tall trees, cliffs, wires, and other obstacles present no hazard to birds. Extremely fine wires that are hard to see can potentially trick them, but remember that their eyesight is several times keener than ours, and their idea of “extremely fine” is correspondingly smaller than ours. Tower guys may make attractive roosting spots, but they pose no hazards. It requires specially constructed “mist nets” to catch birds in flight. Modern

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“mist nets” are so fine that even the birds can’t see them in dim light, but it took the development of things like Kevlar to make threads that were fine enough and strong enough for a practical net. The one hazard that does confuse birds is reflection of skylight from glass windows and building facades. Birds use their eyes to determine their flight path and sometimes will head for daylight reflected from a window, flying into it at full speed. Some tall buildings hurt dozens of birds annually that way, and anyone who keeps a backyard birdfeeder has probably seen or heard a bird smack into their windows. This is due entirely to the false cue given by reflected skylight, not to the bird’s clumsiness. One can completely eliminate birds flying into windows by putting a silhouette of a hawk on the window, which the birds will see and avoid. As to more authoritative sources, there are tens of thousands of articles in the literature on bird flight, published over the last 300 years or more. Chet Raymo answered a question along the lines of “How can a bird fly through the trees without hitting anything?” in the Boston Globe about a year ago. His answer was very close to mine, though more succinct. Anyone (and I do mean anyone) who has closely watched birds fly, land, feed, quarrel, and mate knows that birds are masters of their aerial environment. Mankind must resort to things like guns, rapidly spinning wind turbine blades, or high-speed aircraft to make a serious threat to a flying bird. The Audubon Society possesses the necessary information and credentials, but they have agendas that may discourage them from supporting your case. The fundamental point is this: Birds fly using their eyes, and they can easily see and avoid virtually any obstacle we choose to put up. A few birds, like homing pigeons, use the Earth’s magnetic field for navigation. Navigation is not the same as flight control. Big chunks of steel may distort the local magnetic field enough to cause a pigeon to veer off course, but so do many other things, including air currents, natural deposits of iron ore, and the sight of tasty seeds or fresh water on the ground below. Once they have flown out of the immediate vicinity of the steel, they will find their way home. Last but not least: If towers were hazardous to birds, we would have found out about it 50 years ago, if not earlier. There have been towers and avid bird watchers around for a long time. Here are a few citations: I like the first—the big predator birds like the densest towers for building nests! AUTHORS: Steenhof, Karen; Kochert, Michael N.; Roppe, Jerry A. TITLE: Nesting by raptors and common ravens on electrical transmission line towers SOURCE: The Journal of Wildlife Management, v 57 (Apr 1993) p 271–81 bibl il map ABSTRACT: A study of the attraction to artificial structures in nesting populations of raptors and common ravens (Corvus corax). A 596-km segment of a 500-kV transmission line in southern Idaho and Oregon was the chosen site. The breeding success of raptor and raven pairs, their fidelity to a nest site, and the condition of the nest on successive years were assessed by helicopter survey. Those towers with a dense steel latticework, which afforded the nest greater protection from wind, were preferred. Provision of stable nesting substrates improved raptor nesting opportunities. Guidelines on how utility companies could increase nest site availability are provided. AUTHORS: Osborn, Robert G.; Dieter, Charles D.; Higgins, Kenneth F. TITLE: Bird flight characteristics near wind turbines in Minnesota. SOURCE: The American Midland Naturalist, v 139 (Jan 1998) p 29–38 bibl il. ABSTRACT: During 1994–1995, we saw 70 species of birds on the Buffalo Ridge Wind Resource Area. In both years, bird abundance peaked in spring. Red-winged blackbirds (Agelaius

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phoeniceus), mallards (Anas platyrhynchos), common grackles (Quiscalus quiscula), and barn swallows (Hirundo rustica) were the species most commonly seen. Most birds (82–84%) flew above or below the height range of wind turbine blades (22–55 m). The Buffalo Ridge Wind Resource Area poses little threat to resident or migrating birds at its current operating level. AUTHORS: Cuthill, Innes; Guilford, Tim TITLE: Perceived risk and obstacle avoidance in flying birds SOURCE: Animal Behaviour, v 40 (July 1990) p 188–90 bibl il Frasch Letter From: Steve Fraasch, K0SF Fred: First off, as of 9:45 CDT, 31 Aug, the Corcoran, MN city council voted NO ENVIRONMENTAL ASSESSMENT WORKSHEET REQUIRED!!! Summary: At the last minute, I managed to persuade a prominent birder, Mr. Robert Janssen, editor of 32 years of the MN Ornithologist Union’s journal, “The Loon,” and writer of numerous ornithology books, to appear and testify. He was able to counter the opponents’ other expert’s testimony quite effectively. [The opponent] claimed the swans lived in my wetlands (I have no confirmed spottings) and were especially vulnerable to power lines, towers, and other structures. The atmosphere was not as contentious as the previous 7 hearings; the speakers were limited to 3–5 minutes, with discussion limited to only the impacts alleged in the environmental quality board petition. Of possible use to the fraternity (and now you’ll understand his value): Mr. Janssen conducted a 1-year study on short tower bird strikes on behalf of Minnesota Public Radio (MPR), who is applying to a metro suburb for 3 each 395’ AM towers. Mr. Janssen’s study group found no strikes whatsoever, after studying 4 other tower sites (3 ea 260’ AM, 127’ and 195’ AM, 295’ Cellular, and NSP power lines in nearby wetlands). Conclusion: Towers of these heights cause insignificant kills, if at all. I read some of your e-mail testimonials last night to the council, but had all of them available for record. They’re all in my continuity file, and I will condense them into a text file to make available on request. My mayor (who voted against the EAW) said that the ham’s testimony was relevant and crucial, since no other ham tower-bird strike data were available. Also, heroes of the evenings are: Jay Bellows, K0QB, ARRL Volunteer Counsel. What else can I say about Jay? He’s simply the best. Dave Wester, K0IEA, for his appearance and testimony and Bob Garwood, N0BG, for his extremely relevant testimony of a 130’ tower he owned near a wildlife area, and endorsement letter from a DNR official citing no affect of the tower on the trumpeter swans and other rare birds in the area. He had appeared without asking; only by reading about it in our local paper. I had forgotten all about that, but he showed on his own initiative.

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Again, any and all of my experience and documentation are available upon request. Pardon the pun: Us “birds of a feather” need to stick together on tower actions. Legal action may be pursued in court, but we’re ready. Very 73 and again thanks for the wonderful testimony, Steve Fraasch, K0SF Attachment: “Final Report: Study to Assess the Potential Effect of Three AM Radio Towers on Bird Migration and Local Bird Movements.” Prepared in 1994–1995 by: Franklin J. Svoboda & Associates 25580 Nelsine Dr. Shorewood, MN 55331 Specializing in Wetland Services and Wildlife/Vegetation Studies (See filename Svoboda Report.pdf on the CD.)

5500

For every 10,000 birds killed by human activities, less than one death is caused by a wind turbine.

700 ⬍1 Wind turbines

700

800

1000

1000

250

Pesticides

Communication towers

Vehicles

High tension lines

House cats Other

Buildings/ windows

Figure 9.2 Bird deaths caused by human activities. (Source: Erickson, W. P. et al., 2002, Summary and Comparison of Bird Mortality from Anthropogenic Causes, USDA Forest Service Gen. Tech. Rep. PSW-GTR191, U.S Department of Agriculture, Washington, D.C., 2005.)

Finally, in the interest of providing some perspective on the threat of towers to birds in relation to other causes of avian mortality, see Figure 9.2.

C HA P TER 1 0

Possible Objections—Diversionary Tactics

10.1 Alternative Technologies—Internet, Satellites, Smaller Antennas There’s always someone in the crowd at the hearing who is thinking and sometimes says: “Why do we have to grant a permit for a big antenna system when we have more modern methods of communications available, such as the Internet, cellular telephone,1 satellites, and technologies that shrink the size of antennas?” It is hard to believe that this person believes that this is a serious argument. He or she just wants to see you dance. It is another piece of spaghetti to throw against the wall to see if it sticks. Don’t get rattled. The strategy is always the same. Politely acknowledge the objection and then bury it: Mr. Chairman, I share Mr. Smith’s interest in new technologies. We need them all, and the FCC, which licenses each of these services, thinks so, too. We don’t know now, when push comes to shove, which method of communications will prove effective to which individuals. Some will get their information one way; others another way. But, in any event, this is a land use proceeding and not a public policy discussion about effective use of the radio spectrum. That matter is exclusively reserved to the Federal government. The law does not require me to use methods that satisfy opponents. Instead, the law requires the Board test this application against the criteria in the ordinance, and this complaint does not address one of those criteria. What is proposed here is a permissible use in the zone, and I urge you to grant the application.

10.2 The Height Proposed Is Not Required This objector who uses this line of attack is really saying that he or she doesn’t want to see something tall. This objection must be approached separately according to the service involved.

10.2.1 UHF and Microwave Every panel should be able to understand, when you tell them, that UHF and microwave signals are strongly attenuated by leaves, trees, buildings, and hills. Especially hills. It is an excellent idea to use 1

The author has heard it argued that we don’t need new AM or FM broadcast antennas, because all the news you need in a time of emergency can be obtained from an RSS text feed to your cell phone. Conversely, one supposes, a similarly false argument could be fashioned to say that we don’t need cell phones, because all the news you need to learn in time of emergency is best carried by broadcast stations, and not by clogging up cellular telephone circuits. Lest there be doubt, the correct answer is that we need both.

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U.S. Geological Survey (USGS) topographic information to portray intervening landmasses that are higher than your location or higher than the target location. You could also print out a wide topographic view from the TopoZone website, now part of http://www.trails.com. Another source for a graphical representation of intervening terrain is http://www.heywhatsthat.com. Look for “Path Profiler.” Enter your two way points and then click “Show Profile.” Additional terrain mapping information can be found using these websites: •

http://maptech.mytopo.com/land/index.cfm?CFID⫽11614376&CFTOKEN⫽77150389, or http://mapserver.maptech.com/homepage/index.cfm

•

http://maps.live.com, a site that has terrific aerial photographs to show the forest in the direction of interest (i.e., you need to get over the trees), sponsored by Microsoft

•

http://www.wikimapia.org, which has good aerial photographs, powered by Google

•

http://acme.com/mapper/ (check out the “Terrain” function)

•

Your state’s GIS website (in Massachusetts, it is http://www.mass.gov/mgis/Cool_ Interactive_Maps_on_the_Web.htm, which has a collection of links you might useful)

A topographic map presentation can show the need for height to improve a path that requires line-of-sight communications. Figure 10.1 shows a path profile created using DeLorme Topo software for a microwave path from a spot in Whately, MA, to Springfield, MA, to the south. The challenge was to get over the immediately abutting hill. The experimental software program Radio Mobile Deluxe, created as freeware by VE2DBE, can also be used to analyze terrain obtained from the USGS digital elevation map (DEM) database for VHF/UHF line-of-sight capability. The program has a fairly steep learning curve, particularly when it comes to how to access the necessary terrain databases. However, it is also very powerful, especially when you’re trying to make a compelling, full-color presentation to a Planning Board showing that your path to a particular repeater or packet node is blocked by the intervening terrain. See http://www.cplus.org/rmw/english1.html. For further discussion of free tools, see http://freegeographytools.com/2007/mapping-radio-coverageand-viewing-it-in-google-earth. You might also wish to try SPLAT! (http://splat.ecok.edu/). If a cellular telephone company will be a tenant, their engineering departments can all produce coverage maps. If one is available to you, don’t leave home without it. Speaking generally, maps are a good thing.

10.2.2 AM Broadcasting For AM broadcast stations where there is an objection to the height, every applicant must be completely familiar with Koor v. City of Lebanon, 148 NH 618 (2002), 813 A.2d 418 (N.H. 2002), http://www. courts.state.nh.us/supreme/opinions/2002/0212/koor152.htm. In this case, Koor Communications, Inc., had been granted a 50 KW (daytime) license for an AM broadcast station at 720 kHz. For this frequency, the minimum height permitted under the FCC’s regulation at 47 CFR §73.189 (b)(2)(ii) (2001) was

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Demonstrating the need for height due to an intervening hill Direction of interest

Tower

561 ft

Wpt3

520 ft Wpt2

470 ft 0 0.18 mi

4.87 mi

9.74 mi

14.61 mi

19.48 mi

24.35 mi

29.22 mi

34.09 mi

3-D Topo Quads Copyright © 1999 DeLorme Yarmouth, ME 04096 Wpt ⫽ Waypoint

It is possible to show intervening terrain Wpt1

559 ft 380 ft 230 ft 60 ft

Wpt2

0 mi

5 mi

10 mi

15 mi

20 mi

25 mi

28.43 mi

Figure 10.1 Topographic profile of the propagation path from W1UK’s location in Coventry, C T, to a repeater in Bolton, C T. It shows that a hill about 6.7 miles away would obscure a direct line-of-sight path. This hill could be overcome if the repeater were mounted on a 100-foot-high tower and if W1UK were allowed to put up a 200-foot tower!

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266 feet. That regulation is accompanied by a chart showing the minimum height for all frequencies in the AM band, found at 47 CFR §73.190 (Fig. 7) (2001). As the Court noted: “At no frequency does the minimum height appear to fall below forty-four meters or approximately 144.36 feet.” Unfortunately, the city’s zoning ordinance prohibited any antenna at a height greater than 42 feet. Thus, the Supreme Court of New Hampshire found that there was a conflict between local and federal law. “Accordingly [wrote the Court], we conclude that for anyone seeking to operate a new FCC-licensed AM station in the city, compliance with both the zoning ordinance and federal law is a physical impossibility.” The Court continued: “In the case of AM broadcast stations, there are detailed regulations mandating minimum antenna heights, see, e.g., 47 CFR §§73.189, 73.190 (2001), at least in lieu of proof to the FCC that required minimum field strengths can be achieved by an antenna of less than the specified minimum height, see 47 CFR §§73.186, 73.189 (2001). Such detailed regulations weigh in favor of a finding of preemption.” The Court ruled that the local zoning ordinance was preempted by the FCC’s regulations. Koor’s brief to the Supreme Court of New Hampshire may be found at http://www.antennazoning.com/docs/ koor-brieffinal.doc. The brief amicus curiae by the Society of Broadcast Engineers is at http://www.antennazoning .com/docs/koor-amicus.doc. The City’s brief is at http://www.antennazoning.com/ docs/lebanon-brief.pdf, and a reply brief by Koor is at http://www.antennazoning.com/docs/koor-reply-brief-final.doc. The decision (http://www.antennazoning.com/docs/koor-decision.doc) and all four briefs may be found on the accompanying CD. As a side note: When it was all over, Koor sought to recover its attorney’s fees on the grounds that it had asserted a First Amendment right. Though the Court ruled in favor of Koor on preemption grounds and never reached the First Amendment claim, Koor argued that it had presented a civil rights claim, had been the prevailing party, and was due its attorney fees under 42 USC §1983. The argument did not prevail. The Court ruled that it had not been asserted in timely fashion. Your author thinks that the argument should be tried again, as the New Hampshire Supreme Court never reached the First Amendment claim, for either preemption or attorney’s fees. Since the Koor decision, there have been two major developments at the FCC: acceptance for certain purposes of the KinStar Antenna and the Valcom Whip.

10.2.3 The KinStar Antenna For a single vertical, the FCC has accepted a proof of performance in accordance with 47 CFR §73.160(b)(2), for a “new, efficient low-profile AM” antenna, as described at the 2003 National Association of Broadcasters (NAB) show in a paper by James K. Breakall, Ph.D., of Pennsylvania State University (http://www.star-h.com/publications/nabpaper.pdf). That paper describes the KinStar antenna at 1680 kHz as “45 feet high by 105 feet in radius, with four L-shaped radiating wires arranged symmetrically around the center” (see Figure 10.2). Additional papers describing this antenna may be found listed at http://www.star-h.com/publications/papers.html. The FCC Public Notice for this antenna says that it will have a height of 75 feet at 1000 kHz. At 550 kHz, it would, of course, be even taller. A complete ground system and fencing are still required. In 2005, the FCC issued its public notice approving the use of the KinStar antenna by Class B, C, and D AM medium-frequency broadcasting stations in the United States. Stations can immediately

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Figure 10.2 The KinStar low-profile antenna developed by STAR-H Corporation. (Photograph courtesy STAR-H Corporation; Lancaster, PA; http://www.star-h.com.)

apply for licensing of the KinStar and do not need to submit current distribution or field-strength proof measurements. The full text of the announcement is available in PDF format at http://hraunfoss.fcc .gov/edocs_public/attachmatch/DA-05-2741A1.pdf (http://www.star-h.com/news/press.html). Applicants may only specify the KinStar antenna for nondirectional use, so it is not an answer to those who require a directional (multi-antenna) array. Attention engineers: If your local bylaw specifies a maximum height of perhaps 36 feet, this antenna does you no good anywhere in the AM broadcast band (550 to 1700 kHz). Attention lawyers: You may not be an engineer, too. Don’t even think about discussing this antenna in public before you speak with the station engineer. Attention station management: One of these antennas, made of wires, cannot support cellular telephone antennas, which can be a significant source of income to a nondominant AM radio station. In the 2009 marketplace, rental income from Commercial Mobile Radio Service (cellular) antennas placed on an AM tower could make the difference between station viability and station death. 10.2.3.1 The Crossed-Field Antenna (CFA) Do not confuse the KinStar antenna with the crossed-field antenna (CFA), or E-H antenna, developed in the 1980s by Dr. Maurice Hately, F.M. Kabbary, and B.G. Stewart. As reported by Cris Alexander,

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Director of Engineering, Crawford Broadcasting Co., Denver, CO, in Radio World Engineering Extra (August 20, 2008, p. 28 ff), despite claims of deployment in Egypt, India, and China, this antenna has: not made any inroads into the U.S., despite a push to do so back in the late 1990s. The reason: to my knowledge, no one has ever made any scientifically valid radial field strength measurements on the CFA that demonstrated usable performance. Such measurements are the only way to prove the inversedistance field of the antenna. Indeed, the FCC would require a pretty hefty set of measurement data before it would authorize such an antenna. I can’t help but wonder why the proponents have never gone to the trouble of making and publishing such radial measurements. Could it be that the antenna does not produce the required minimum 282 mV/m/kW at 1 km? Without measurements, there’s no way to know.

Whether you believe in the CFA antenna or not, lacking the proof of performance required by 47 CFR §73.189(b)(2)(ii), which has never been produced, it cannot be licensed. Or, as a headline in Radio World (March 31, 1999) put it: “Is this AM Antenna for Real?” After field experiments with several designs of CFA in 2008, Alexander (op. cit.) reported: I remain “hopefully skeptical” about the whole thing, hoping it will work but believing in my heart that the laws of physics can’t be cheated; that a very low element radiation resistance will lead to very high losses in the matching network and wiring, creating in essence a high-Q dummy load.

For nonengineers in the crowd, that means the results of the inventors could not be replicated by other researchers, and the claims remain unverified.

10.2.4 The Valcom Antenna Staying within the laws of physics, however, Valcom Manufacturing Group, of Guelph, Ontario, has produced an 85-foot, coil-loaded, self-supporting whip, Model V-33085AM/CL2 (http://www.valcomguelph.com/products/V-33085AM-CL2.html), which has been tested and proven to meet FCC fieldstrength requirements for Class B or Class D stations at frequencies of 1200 kHz or higher. It cannot be licensed for frequencies below 1200 kHz. The brochure for this antenna may be found at http://www.valcom-guelph.com/products/downloads/brochure/V33085AM-CL2%20(BR267%20rev%20A).pdf.

A 75-foot version may be used at frequencies from 1390 to 1700 kHz. A fiberglass self-supporting whip antenna with loading coil and top loading, the Valcom whip is described by the manufacturer as “ideally suited for use as an STA or backup antenna.” Reference data for the antenna show limitations on its power handling capability. There is no reason to believe that it can be licensed for a directional array. Further testing and data will be required to see if FCC minimum performance requirements can be achieved. The FCC Public Notice for the use of this antenna, issued February 22, 2008, may be found at DA 08-448 (http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-08-448A1.doc).

10.2.5 A Side Track on the Question of AM Preemption Lest anyone think that the area of AM preemption presents settled law and that the lawyering in this area is easy, potential proponents should be aware of some brilliant lawyering on behalf of a

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group of opponents to an AM radio station. Through Atty. Barry Friedman, Damascus Residents for Responsible Tower Siting (DRRTS) petitioned the FCC for a declaratory ruling. As you read it, and consider the pages that follow, notice the beauty of the request, which was truly a very limited request, applying to a narrow set of circumstances, and circumstances where, unlike the Koor case, AM broadcasting does not, in the documents, appear to be banned from the entire municipality. Thus, the matter seems more akin to a respect for a historic district than an agreement that the FCC’s regulations would not result in a preemption in other circumstances. One year later, the FCC replied. Thereafter, another filing questioned the FCC ruling, for among other reasons, the fact that the FCC got the facts wrong. The subject is interesting and, as yet, not completely fleshed out. The September 2005 letter from Atty. Friedman is presented as Figure 10.3, and the FCC’s September 2006 response is presented as Figure 10.4.

Figure 10.3 Letter from Atty. Friedman to FCC.

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Figure 10.4 September 2006 FCC ruling.

Here is the objection to the FCC ruling I filed in October 2006.

Before the Federal Communications Commission Washington, D.C. 20554

In the Matter of Petition by Thompson Hine LLP for a Declaratory Ruling on Whether Zoning Rules on Broadcast Towers Would be Preempted by the Commission

) ) ) ) ) )

DA 06-1920

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The Commission PETITION FOR RECONSIDERATION OR WITHDRAWAL

Alternative Technologies—Internet, Satellites, Smaller Antennas ........................................... 1 The Height Proposed Is Not Required ................................................................................. 2 UHF and Microwave ........................................................................................................ 2 AM Broadcasting ............................................................................................................. 3 The Kinstar Antenna ...................................................................................................... 4 The Crossed-Field Antenna (CFA) .................................................................................. 6 The Valcom Antenna ..................................................................................................... 7 A Side Track on the Question of AM Preemption ............................................................ 8 I. SUMMARY ....................................................................................................................... 9 II. BACKGROUND ............................................................................................................ 10 A. This Petition and Petitioner .................................................................................... 10 B. This Proceeding ..................................................................................................... 12 1. History ................................................................................................................ 12 2. Omissions. .......................................................................................................... 14 III. HARM BY MISQUOTING ............................................................................................ 17 IV. RELIEF SOUGHT ......................................................................................................... 18 The First Amendment Argument ............................................................................... 24 We Don’t Need Another Broadcast Station ....................................................................... 27 I. SUMMARY Acting under §1.2 of the Commission’s Rules, in response to a letter request on behalf of Damascus Residents for Responsible Tower Siting, Inc. (“DRRTS”),1 the Media Bureau has issued a Declaratory Ruling, DA 06-1920, dated September 26, 2006. There was no Public Notice (which would have allowed for comment by the numerous parties affected). The Ruling was improvidently granted because it neither terminates a controversy, nor does it remove uncertainty. The Ruling is not responsive to the request presented to the Bureau. Definitions, and an explanation of a variety of preemptions resulting from Commission, Congressional and Court action, are critical to an understanding of the law involved. Without 1

Koor, on information and belief, submits that DRRTS, acting through Thompson Hine, LLP, is the real party in interest in this matter. It is a matter of great curiosity to Koor as to why the name of the party and its more detailed purposes were omitted. Among other reasons to believe that DRRTS sought this Order is the following reporting from Maryland Community Newspapers Online, cited on the DRRTS web site: Based on FCC precedent, the Damascus residents’ group thinks the FCC may not renew the building permit. Their lawyer wrote to the FCC for an opinion on whether it thinks an FCC permit would supercede county regulations. The issue would pit environmental law against communications rules. “It is true that to date the commission has not adopted any rules or regulations that preempt local zoning rules affecting construction of broadcast towers,” Donna C. Gregg, FCC chief of the media bureau, responded in a Sept. 26 letter. http://www.gazette.net/stories/100406/damanew213914_31941.shtml (last visited October 23, 2006)

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definitions and explanations, the statement of the law is incomplete. While the Order of DA 06-1920 is both brief and technically correct, matters left unstated have already caused it to be misused and misquoted—cited for what it does not hold. Finally, it is being read as predictive of what the Commission would do at a future time on a matter that has been before the Commission for some years, extensively briefed, but not decided. This Order should be reconsidered and reissued with appropriate context, or withdrawn. To avoid harms resulting from misquotation, this matter should be handled on an expedited basis. II. BACKGROUND A. This Petition and Petitioner Pursuant to 47 CFR §1.106, Koor Communications, Inc. (“Koor”) seeks reconsideration or withdrawal of DA 06-1920 (“the Ruling”), issued by the Chief of the Media Bureau. The original ruling may be found at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/ DA-06-1920A1.pdf Koor is the holder of four AM broadcast licenses and one FM broadcast license. At great expense, after a great deal of time, Koor succeeded before the Supreme Court of New Hampshire in obtaining a ruling that Commission Rules may, and did in its case, impliedly preempt local zoning rules. In the case of AM broadcast stations, there are detailed regulations mandating minimum antenna heights, see, e.g., 47 CFR §§73.189, 73.190 (2001), at least in lieu of proof to the FCC that required minimum field strengths can be achieved by an antenna of less than the specified minimum height, see 47 CFR §§73.186, 73.189 (2001). Such detailed regulations weigh in favor of a finding of preemption.

Koor Communication v. City of Lebanon, 148 N.H. 618, 623 (2002) Referencing 47 CFR §1.106 (b)(1), Koor submits that it is a party adversely affected by any Order that may further embolden the City of Lebanon in its previously stated opposition to the construction of new broadcast towers anywhere in the City. When counsel for the City of Lebanon stood before the New Hampshire Supreme Court to argue that Koor was merely choosing to erect its antenna system in Lebanon, and that it was not necessary for the good of Lebanon because the City had plenty of communications already, a New Hampshire Supreme Court judge asked: “Where is he supposed to put his towers? Vermont?” That the animus toward broadcast towers exhibited by the City of Lebanon in the past is undiminished is shown by the extraordinary requirements of Lebanon’s new zoning bylaw directed at broadcast towers. At present, in Lebanon, NH, the new bylaw (passed after Lebanon lost the preemption case to Koor) provides that broadcast towers can only be in the Rural Lands zone (and not in the residential, industrial or commercial zones)2. The bylaw also provides that the broadcast towers

2

Koor notes, with irony, that a broadcast tower in Lebanon, NH, may not be located next to a cement plant, or other heavy industry plant, the town dump, in an industrial park, and so forth. Koor speculates that limiting the location of broadcast (and only broadcast) towers was designed to cause a permanent and irreconcilable conflict with other portions of the zoning bylaw designed to protect scenic vistas (whatever they may be and however delineated). In other words, a broadcaster may only build in a rural district, and the bylaw discourages contruction in the rural districts as incompatible with preserving the rural district.

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must meet additional burdens applicable only to broadcast towers, by requiring findings in addition to the usual finding required of all Special Exceptions.3 B. This Proceeding 1. History The Request. This proceeding began with the submission of a Request for Declaratory Ruling, dated and received at the Commission on September 26, 2005 (“the Request”). See Attachment A. The original ruling may be found at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA06-1920A1.pdf Lack of Public Notice. Referring to 47 CFR §1.106(b)(1), Koor believes that this matter was not the subject of a Public Notice. Thus, no previous opportunity to comment was afforded to Koor, to other broadcast interests who were heavily involved in the 1997 proceeding mentioned by Thompson Hine in its request, Thompson Hine Letter at 1,4 nor to others whose towers might be confused with broadcast towers by a lay zoning board.5 Furthermore, Birach Broadcasting (WDMV), the party most immediately affected by the Order, could have responded had this matter been on Public Notice, yet does not appear to have been able to participate. The Requester. The Order recites: According to the request, your client is participating in the development of modified local zoning regulations addressing the construction of new broadcast television towers.6

3

Lebanon’s bylaw requires findings: a. That the proposed height of the antenna and associated structures such as towers is the minimum height permitted by federal regulations for the frequency and type of broadcast signal to be used by the applicant, in light of the best available technology, and that no additional height is being sought solely to increase the range of the signal b.

That there are no feasible alternative sites within the RL [Rural Lands] Districts of the City where the facility could be located with significantly less visual impact on the neighborhood and City as a whole, due to reduced height needs, reduced visibility, or other site advantages. To show that these standard are met, the applicant shall furnish the Board with a written impact analysis prepared by a professional radio frequency engineer familiar with both the technology and the regulatory framework for the type of station proposed. The analysis shall not be conclusory, but shall detail the applicant’s specific objectives, and shall evaluate and compare specific alternative technologies, and the suitability and visual impacts of specific alternative sites within the City, using viewshed maps and photo simulations. The Board of Adjustment may, at the applicant’s expense, hire a person, with such qualifications as the Board may determine, to review the analysis. The Board may require additional information as needed to decide the case.

http://lebanonnh.virtualtownhall.net/public_documents/lebanonnh_plandocs/050703%20zoning%20ord.pdf (last visited October 23, 2006). 4

Thompson Hine no doubt refers to the NPRM, “Preemption of State and Local Zoning and Land Use Restrictions on the Siting, Placement and Construction of Broadcast Transmission Facilities, 62 Fed. Reg. 46241 (proposed August 19, 1997), http://www.fcc.gov/Bureaus/Mass_Media/Notices/1997/fcc97296.html (last visited October 23, 2006).

5

Examples of non-broadcast towers that might be confused with broadcast towers by a lay board include radio amateurs (but see 47 CFR §97.1), and CMRS—including cellular telephone (but see 47 USC §332).

6

DRRTS actually opposes the construction of AM broadcast towers, and did not mention “the construction of new television towers in its request.” [Emphasis supplied.] In this respect, the Order is not responsive to the request.

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Koor believes that the petition was actually prompted by a proposal to build a multiple tower AM broadcast station in Damascus, MD. See http://drrts.com. A hyperlink on that web page refers to DA 06-1920. Koor believes that the Thompson Hine client, though unnamed and benignly described in the initial petition only as “a non-profit citizens group,” was actually Damascus Residents for Responsible Tower Siting, Inc. (“DRRTS”), 26501 Ridge Road, Damascus, MD 20872, which describes itself this way: [DRRTS] Is a non profit corporation that was formed to fight tall AM radio broadcasting towers in Damascus. The fight began 10 years ago, and will continue until Damascus is free of this menace.

http://drrts.com/aboutus.html (last visited October 5, 2006) DRRTS does not seek “responsible siting” of broadcast antennas in Damascus. It seeks a prohibition, a “Damascus . . . free of this menace.” DRRTS has also raised, at the local level, but not before the Commission, arguments asking local authorities to ignore Commission jurisdiction and rulings, by claiming that “These towers will: . . . Negatively affect quality of life (radio transmission interference).” http://drrts.com (last visited October 23, 2006). Prior Commission Consideration. In 1997, preemption of local zoning was the subject of a petition for a rulemaking by the Association for Maximum Service Television and the National Association of Broadcasters, In the Matter of Preemption of State and Local Zoning and Land Use Restrictions on the Siting, Placement and Construction of Broadcast Station Transmission Facilities, MM Docket No. 97-182, http:// www.fcc.gov/Bureaus/Mass_Media/Notices/1997/fcc97296.pdf. Considerable effort by numerous parties went into consideration of that NPRM. In the words of Thompson Hine, the Commission “has elected not to render a decision on this subject.” Thompson Hine Letter, at 1. Failing to render a decision is not the same thing as rendering a decision. We also reject the city’s argument that the FCC’s failure to adopt proposed preemptive rules that would have covered all broadcast facilities indicates a lack of federal preemption. See Preemption of State and Local Zoning and Land Use Restrictions on the Siting, Placement and Construction of Broadcast Transmission Facilities, 62 Fed. Reg. 46241 (proposed August 19, 1997). We have noted that “[t]he legislature expresses its will by enacting laws, not by failing to do so.” Merrill v. Manchester, 114 N. H. 722, 728 (1974). The same holds true for the FCC and its promulgation of regulations.

Koor, ibid., at 624. In normal usage, a request for a declaratory order may be helpful in “removing uncertainty.” 47 CFR §1.2. Here, however, the issuance of the Order, in its brevity, with resulting misuse, creates uncertainty. 2. Omissions. Other Preemptions. While the Request mentions preemptions for CMRS (47 USC §332) and DBS dishes (47 CFR §1.4000), the Request does not mention: •

the preemption for VHF and UHF antennas under the OTARD rule of 47 CFR §1.4000,

•

the preemption for amateur radio found at 47 CFR §97.15(b) and in “PRB-1” at http://wireless.fcc.gov/services/index.htm?job⫽prb-1&id⫽amateur&page⫽1, et seq., and

•

the implied preemption for AM broadcast towers (the cause of the Damascus situation) caused by an actual conflict between local zoning and 47 CFR §§73.45, 73.189, and 73.190, Koor Communication v. City of Lebanon, 148 N.H. 618 (2002).

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As a result of these omissions from both the Request and the Order, a lay reader might conclude, as DRRTS has, that “a review of Commission decisions evidences a clear desire to defer to local officials on such matters.” Thompson Hine letter, at 1. Definitions. The phrase “broadcast towers” is not defined in the Order. It is a term of art. Koor submits that, from its experience, vividly recalled, perhaps every member of every board it faced in Lebanon, NH, as well as counsel for the City (particularly counsel for the City), was unfamiliar with the distinctions between broadcast towers (whether for AM, FM or TV), amateur radio towers, CB towers, CMRS towers, non-communications towers subject to FAA/FCC rules for marking and lighting, and so forth. As written, the Order is likely to sew unending confusion at the local zoning level. The Order is incomplete. It does not address the 1997 proceeding. It does not say that preemption can occur by congressional action. It does not say that preemption can occur by implication when there is an actual conflict between local and federal rules. It leaves open the opportunity for municipal mischief with respect to the conversion from analog to digital signals, when the conversion requires new “construction” to accommodate broader bandwidth for an AM signal, or a second antenna for a different TV channel. The Request speaks to the preservation of “agriculturally zoned land and scenic vistas.” Koor has no idea as to what the definition of a “scenic vista” may be, nor is it possible to discern from the Order whether this represents the view from the site, or the view to the site. The Order virtually invites local zoning authorities to bypass, perhaps ignore, the SHPO (State Historic Preservation Office) process of the NEPA (National Environmental Policy Act) of 1969. There are substantial public policy issues involved with respect to tall towers. The question must be asked: If you can’t put a tower on agriculturally zoned land, and no parcels large enough exist in commercially zoned areas, and there may be no industrially zoned land, and there is no “broadcast overlay district,” and no parcels large enough in residential areas, then the consequence is that broadcast (whether AM, FM or TV) antennas may be effectively prohibited. III. HARM BY MISQUOTING It was never the intention of the Congress or the Commission to allow the prohibition of local broadcast coverage. Yet there is good reason to fear that a misreading of this Order will result in effective prohibition of new broadcast towers in many communities. This would be in direct conflict with the basis and purpose of the FCC, as found in the Communications Act, which is “to provide for the use of [radio transmission channels].” (Emphasis added.) See generally 47 U.S.C. §151 (purpose of the Act includes “to make available, so far as possible . . . a rapid, efficient Nation-wide and world-wide radio communication service with adequate facilities”); 47 U.S.C. §157 (“It shall be the policy of the United States to encourage the provision of new technologies and services to the public.”). http://www.fcc.gov/Bureaus/Mass_Media/Notices/1997/fcc97296 .html at footnote 20 (last visited October 23, 2006). It may be the Commission’s intention to restate existing law and policy in the Order. Nonetheless, the Order quotes the Request that “local zoning rules which are predicated on land use preservation, including preservation of agriculturally-zoned land and scenic vistas, would not be preempted by the Commission.” The Order then holds: “It is true that, to date, the Commission has not adopted any rules or regulations that preempt local zoning rules affecting construction of broadcast towers.” While the statement is technically correct, and may be understood to be technically correct by skilled practitioners, its omissions leave a highly misleading impression. The Order has already been misquoted, by the use of the future tense—which is not what the Commission said.

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Chapter 10 The FCC gives us a declaratory ruling. The FCC rules that it will NOT preempt local zoning, land use, and height regulations in the case of broadcast towers! This should prove very useful at the Montgomery County Planning Board meeting on September 28th, and the zoning exception hearing on October 6th.

http://drrts.com/ (last visited October 5, 2006) At least one newspaper reporter has already misunderstood the Commission’s statement—in the present tense—to be predictive of the future. She [the Chief of the Media Bureau] granted a declaratory ruling that according to her understanding of the facts in the case, the FCC would not preempt local authorities.

http://www.gazette.net/stories/100406/damanew213914_31941.shtml (last visited October 23, 2006) IV. RELIEF SOUGHT Koor seeks expedited treatment of this Petition, on the ground that it, in particular, is seeking to build a 720 KHz AM broadcast station but has been the subject of any number of delaying tactics. Koor fears that the mere existence of DA 06-1920, so readily misquoted, and subject to misinterpretation due to its brevity, will be used to defeat attempts to build by causing delays, or suggesting a moratorium while new regulations are drafted. Koor suggests that it is not alone in such a fear, as fear of delay or denial was a substantial element in the positions of MSTV and NAB in FCC Dkt. No. 97-182, and long delays have certainly been part of the present Lookout Mountain proceedings in Colorado. Koor asks that Order DA 06-1920 be withdrawn. As permitted by 47 CFR §1.106(d)(1), allowing alternative requests, Koor asks that any revised Order, issued upon reconsideration: ●

Include definitions for “construction” and “broadcast tower.” A mere change of antennas (perhaps, to use only a few examples, to broadband an AM antenna for HD Radio use, to duplex an FM antenna, or to add an HDTV antenna) should not trigger a zoning proceeding as if a request had been submitted for a new or higher tower.

●

Include a discussion of the distinctions between antenna towers, making it plain that there may be a variety of preemptions (see above).

●

Identify the Thompson Hine client and its purpose (to prohibit the construction of AM broadcast towers anywhere in the municipality).

●

Include a discussion that zoning changes for the purpose of controlling “radio emission interference” is impermissible. (See DRRTS web site for claim that the proposed towers “will … (n)egatively affect quality of life (radio emission interference).”)

●

Conclude with the following:

This Order is not intended to predict the FCC’s response to a claim, based on a particular set of facts, that particular governmental action is preempted by federal law. Furthermore, this letter is issued without prejudice to any action that the FCC may take with respect to the subject matter of your request, including but not limited to the pending 1997 Petition you referenced, any threatened or adopted action by a local government, or any proposed construction or

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modification of any antenna structure. Accordingly, this letter may not be used as evidence of the FCC’s position in respect to any particular matter. Respectfully submitted, KOOR COMMUNICATIONS, Inc. by Fred Hopengarten, Esq. D.C. Bar #114124 Six Willarch Road Lincoln, MA 01773-5105 781/259-0088 e-mail: [email protected]

10.2.6 The First Amendment Argument In its preemption case, Koor Communications also made a First Amendment argument. By deciding on the grounds of preemption, the New Hampshire Supreme Court was not required to decide the matter on the basis of the First Amendment argument, so it is impossible to predict how it would work in other circumstances. Nevertheless, it is important to point out that in Koor the required height could not be erected in any zone within the city. As a result, Koor argued that the maximum height bylaw was not a “time, place, and manner” restriction, because the result of the bylaw was “no time, no place, no manner”—a complete ban. If you face similar circumstances, a complete ban throughout the municipality, and it is a broadcasting application (not ham radio, as the case law for trying that argument in a ham radio case is discouraging), you might want to consider an argument something along the line prepared for that case. Here’s how that argument is assembled (and be mindful that you are always addressing the use of private land, not public streets): Broadcasting is clearly a medium affected by a First Amendment interest; see United States v. Paramount Pictures, Inc., 334 U.S. 131, 166 (1948). The City cannot create an effective total ban on this form of First Amendment expression by creating an effective total ban on new AM broadcasting; see Metromedia v. San Diego, 453 U.S. 490 (1981) (holding that a total ban on billboards was not a time, place and manner restriction). Under a First Amendment analysis, the City’s height ordinance requires a higher level of scrutiny than an ordinary land use regulation. And denial of the ability to broadcast at all is denial of a right secured by the constitution. See City of Ladue v. Gilleo, 512 U.S. 43 (1994):

▼

Our prior decisions have voiced particular concern with laws that foreclose an entire medium of expression. Thus, we have held invalid ordinances that completely banned the distribution of pamphlets within the municipality, Lovell v. Griffin, 303 U.S. 444, 451-452 (1938); handbills on the public streets, Jamison v. Texas, 318 U.S. 413, 416(1943); the door-to-door distribution of literature, Martin v. Struthers, 319 U.S. 141, 145-149 (1943); Schneider v. State, 308 U.S. 147, 164-165(1939), and live entertainment, Schad v. Mount Ephraim, 452 U.S. 61, 75-76 (1981).

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Similarly, the Supreme Court has held that the First Amendment is implicated in regulations banning newsracks containing commercial publications; see City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993) and City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988); governing the amplification of music, see Ward v. Rock Against Racism, 419 U.S. 781 (1989); restricting the use of sound trucks, see Kovacs v. Cooper, 336 U.S. 77 (1949); and prohibiting the use of loudspeakers, see Saia v. New York, 334 U.S. 558 (1948). While cities may zone adult businesses, they may not totally ban them; see Schad v. Borough of Mount Ephraim, 452 U.S. 61(1981) (nude dancing) and City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) (adult motion picture theater). There is no principled reason why a city should be forbidden to ban nude dancing and adult bookstores from all zones within the city, yet allow a complete ban an essential element of communication for an AM radio station—a vertical antenna meeting FCC requirements. ▲ If you face a “smart” city, one that has not completely banned AM antennas but rather provided that they may only be erected in places within the municipality where it would be impossible to obtain the required amount of land (whether for the radial field, an artificial “fall zone,” or other reason), feel free to go ahead with the “total ban” style of argument—just add the additional factual basis (with extensive documentation) to claim that forcing AM antennas into an area of town where construction is a practical impossibility is “an effective total ban,” which deserves the same outcome as a total ban. Along those lines, be aware that there are many ways this game can be played. For example, a city might not ban AM antennas but rather require so much land to surround them (perhaps calling it a “buffer zone”) that the result is the same—an effective total ban. By the way, sooner or later, the city will argue that its ordinance “serves a substantial governmental interest and allows for reasonable alternative avenues of communication.” Usually this argument is cloaked in the claim that “attempting to preserve the quality of urban life [note that the argument could just as well be about preserving the quality of suburban life or the quality of rural life] is one that must be accorded high respect” (City of Renton v. Playtime Theatres, Inc., op. cit.). One counter to that claim is that an antenna, sitting silently, has no impact on the quality of life. It is, at most, merely visible. Then proceed to treat the argument as strictly one of aesthetics. Here are some useful quotations, but comparable citations may be available in your jurisdiction: Alleged adverse aesthetic effects of an antenna do not justify the denial of a permit; see Evans v. Shore Communications, Inc. et al., 112 Md. App. 284 (1996); AT&T Wireless Services v. Mayor and City Council of Baltimore, 123 Md. App. 681 (1998). In this particular case, while we have sympathy for plaintiffs’ plight, not all plights give rise to legal rights. We conclude that the mere displeasing appearance in size and shape of a neighboring structure that is otherwise permitted by law, the only admitted effect of which is an alleged diminution in value of the adjacent property, cannot constitute a nuisance or give rise to an inverse condemnation claim. Since a landowner has no natural right to an unobstructed view (Posey v. Leavitt (1991) 229 Cal. App. 3d 1236, 1250 [280 Cal. Rptr. 568]), the size and shape of an otherwise lawful structure on one side of a boundary cannot be deemed either to damage (for purposes of inverse condemnation) or to interfere with the enjoyment (for purposes of nuisance) of that which is on the other side of the boundary. Otherwise, one person’s tastes could form the basis for depriving another person of the right to use his or her property, and

Possible Objections–Diversionary Tactics

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nuisance law would be transformed into a license to the courts to set neighborhood aesthetic standards. See Oliver v. AT&T Wireless Services, 76 Cal. App. 4th 521, 525 (1999) (allowing a 130-foot cell tower).

Reasons for height—The most appealing reasons for height in a zoning proceeding for an AM broadcast station, and this list makes no pretense of suggesting which reason will work best in a particular circumstance, appear to be: 1.

FCC regulations require this minimum height at the frequency of license, and the matter is preempted.

2.

For a directional array, heights lower than those required in 47 CFR §§73.189 and 73.190 have never been approved by the FCC. This is a technical matter and is preempted by the FCC’s regulations.

3.

The licensee is required to serve the city of license.

4.

The antenna is an instrumentality of free speech (see above, as to how to make this argument).

5.

The programming is really useful.

6.

The programming serves underserved audiences (defined by race, ethnicity, or language).

10.2.7 FM/TV Broadcasting No cases have been found to support a claim that local zoning is preempted by federal rule or statute for FM broadcasting or television broadcasting. Thus, all of the above arguments, except for the argument based on minimum required height for an AM radio station, can also be made for FM and TV broadcasting.

10.3 We Don’t Need Another Broadcast Station Fortunately, the arrogance of this argument is easily countered. As a precondition to the grant of a license, every AM broadcast station licensee has already demonstrated “[t]hat the public interest, convenience, and necessity will be served through the operation under the proposed assignment” (47 CFR §73.24(j)). In other words, not only has a need been demonstrated, but a “necessity” has also been shown! Furthermore, as an applicant for a license, you have already shown, to the satisfaction of the FCC, that the station meets each and every element of this ten-part test: (a) That the proposed assignment will tend to effect a fair, efficient, and equitable distribution of radio service among the several states and communities. (b) That a proposed new station (or a proposed change in the facilities of an authorized station) complies with the pertinent requirements of Sec. 73.37 of this chapter. (c) That the applicant is financially qualified to construct and operate the proposed station. (d) That the applicant is legally qualified. That the applicant (or the person or persons in control of an applicant corporation or other organization) is of good character and possesses other qualifications sufficient to provide a satisfactory public service.

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The “public interest, convenience, and necessity” test exists for almost every radio and TV service. Find it for your service, and use it! Times of emergency are too late—When rising to speak at a public hearing, don’t be ashamed to point out the role that broadcast stations play in times of emergency, such as fires, snowstorms, floods, hurricanes, tornadoes, etc. When such a time comes, it is too late to build a broadcast station so government agencies may broadcast instructions to the people. The Internet and cable TV may be worthless when lines are down and power is out. Cellular telephone circuits may be jammed. But, many people have portable, battery-powered transistor radios which can provide critical emergency communications from Emergency Management officials, Civil Defense, or the Red Cross. When the time comes, it is too late. An antenna system must be up and working before the emergency comes.

C HA P TER 1 1

The Permit Application

This is a discussion of issues arising in the course of drafting an application. The accompanying CD has the text of a real application (see filename Commercial Application Sample.doc), ready for you to open as a Microsoft Word file and modify using your word processor. As you go through the process of preparing a permit application, there are a few overarching things to remember: ●

●

●

●

●

●

Only submit material that is relevant to your situation and your application. Argue and use preemption where it is available to you. Do not over argue preemption (i.e., try to convince a Code Enforcement Officer or Board that a preemption protects you to a greater extent than can be justified). Tell the Code Enforcement Officer or Board what does not apply and what does apply. Be sure that you understand that you may face up to four sets of rules: (1) criteria that apply to any and all building permit applications, such as setback and minimum or “required” yards; (2) criteria under a special portion of the ordinance drafted for towers or “wireless communications facilities”; (3) a completely separate set of criteria that apply to any and all applications for a Special Permit; and (4) criteria for site plan review. If you haven’t dealt with all four, you have not assembled a complete application. Answer every question. Don’t leave anything blank. If the bylaw asks for traffic impacts, do not write “N/A” or “not applicable.” Instead, write whatever is true, such as, “The Applicant anticipates that the site will be visited approximately three times per month by one vehicle, for maintenance purposes.” If a criterion poses an impossible burden, do not ignore it. Just ask that it be waived, and give a reason. Here’s an example. Suppose that the ordinance was drafted thinking that a typical cell phone site is 75 ⫻ 75 feet, and it asks for 2-foot contour lines “for the entire property.” But, you’ve leased 1 acre on a 900-acre farm. Here’s a suggested response: “The Applicant has provided 2-foot contour lines for the leased area, and asks for a waiver of this requirement with respect to contour lines for the entire property, which includes 899 acres of unaffected land. The Applicant has, however, included a portion of a USGS map depicting the neighborhood.” 249

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11.1 Purposes of the Permit Application ●

To concentrate the discussion on technology, not aesthetics

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To force the applicant to think through all elements of the application

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To impress the town with your thoroughness

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To shift the burden to those who would deny the permit, using a thoughtful presentation

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To give the permit-granting authority a peg or two to hang their hats on

You will no doubt edit the sample document available on the CD, as it is unlikely that all issues brought up here are relevant to all applicants. Import the document into a word processor, such as Microsoft Word or WordPerfect, to make editing easier. Immediately remove sections that are not relevant to your application. Be sure that the wording is appropriate to your situation. If you are applying for a Building Permit, talk about a Building Permit. If you are applying for a Special Use Permit, talk about a Special Use Permit, and so forth.

11.2 Filing the Permit Application Should you submit your application by registered mail? It won’t really help you much. Even if you can prove that you filed by a certain date, if your application is somehow lost, notices won’t go out to your neighbors and you still won’t be on the agenda. If the neighbors haven’t been notified, your application won’t be considered, even if you filed it in a timely fashion. The usual goal is to get a “stamped in” first page. You will be doing yourself a favor if you call in advance and make an appointment with the Code Enforcement Officer or Building Inspector to go through your application with you. The purpose of this “walk through” is not to get a feel for the reaction of the Building Inspector. Rather, it is to make sure that you have included everything that the inspector thinks you’ll need. Later, the Planning Board (or Zoning Board of Appeals or Planning Commission—various names for this Board are used across the country) will make a decision using this information. For example, it is far better to learn early on that you must get clearance from the Health Department for the placement of a guy anchor near your septic system, that you’ve left off a measurement or failed to include an exhibit, or that you haven’t met the side-yard (sometimes called “required yard”) requirement than it is to learn about it the night of the public hearing. Boards like thorough applications. When you are ready to hand over the application, ask the official to time stamp both your document and the duplicate cover you should bring for this purpose. This is a routine aspect of front desk life in a public office, and no one will think the less of you for requesting a time stamp. Experienced hands will tell you that it is very important to start the clock running, because many states (but not all,

The Permit Application 251 Georgia being one example) have building code rules that town officials must grant or deny within so many days. Nevada has a rule that the application must be accepted or rejected (with reasons related to completeness) within three days, but no rule as to how fast the Building Department must act on the substance of the application. There may be rules that Boards must meet within so many days. Delay plays into the hands of your opponents, who hope that you will get frustrated and move the project. Start the clock with a good date/time stamp.

11.3 Preparing Your Application While printing your application might seem straightforward enough, there are a few lessons I can share with you from personal experience.

11.3.1 Before Printing One last time, read through the document to be sure that the Table of Contents matches the actual pagination, then please read through the document searching for typographical errors. You should also have someone else proofread the document, because by now you should be almost blind from having reviewed the document so many times. If you find errors, you have choices: ●

Correct the errors before printing.

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Correct the errors after printing and before binding by substituting only the affected page.

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File an errata sheet, if necessary.

In any event, if you don’t find the typos, you can’t correct them. Here’s a “been there, done that” tip: Pay special attention to headers and footers. Make sure that dates in headers or footers match the cover.

11.3.2 Convert to PDF When you are completely satisfied with the document, convert it to a PDF. The best way to take a document to the printer is not to print out one nice copy and then go to the printer. Any modern print shop will give you better quality if you show up with the document in PDF format. Instead of printing from your original, the shop is now printing an original every time. If you own only the PDF reader, Adobe will permit you to create a PDF document on their website. Go to http://www.adobe.com/, and look down the left-hand side of the opening page for the “Create Adobe PDF Online” icon. You also can buy emulators, such as PDF995. Creating a PDF version is good, as it fixes pagination. Should you subsequently add pages, you won’t have to reprint the entire document—just print and insert pages 34a and 34b. Do not give it to the printer in .doc or .wpd format, because the margins set in the printer’s computer may be different. Problems will creep in.

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11.3.3 Printing 11.3.3.1 One or Two Sides? You’ll probably choose one-sided printing. (Two-sided requires thicker paper on every page and is probably more expensive. Why thicker paper on every page? Because you need thicker paper for color printing, and you will have some pages of color printing.) Also, think about whether you are going to ship the document. If so, two-sided printing can save you shipping costs. Usually, though, you will deliver it by hand. See below for discussion about proof of delivery, a very important aspect of the process. 11.3.3.2 Color Pages? Go through the document and decide which pages should be printed in color. Then prepare a sheet for your printer that looks something like this: Please print the following pages in color: 7 8 11 14 15 16 31–34 37–38 41 43 Total: 14 The newspaper articles or other documents that make you look good should appear just behind the last page of the document, because they are Exhibits and are part of the supplement. 11.3.3.3 Covers I recommend a clear plastic front cover and a dark blue thick paper or plastic back cover, with a black comb. (See notes below on binding.) I concede that some people prefer a spiral binding. 11.3.3.4 Collating If the pages have to be hand collated, you can probably save some money by inserting the color pages yourself, as you may need only 8 to 10 copies. But, then you have to bring it back to the printer to use their machine to install the binding combs. You can avoid a second trip to the printer by using threering binders.

The Permit Application 253 11.3.3.5 Delivery Hand deliver the required number of copies to the planning and zoning office (and before they leave the office for the day!). Keep two—one for you and one for your attorney. If you know that you are going to have a public hearing, be sure to deliver them the required number of days before the hearing. This will give the Board Secretary the time necessary to distribute them to Board members. Practice tip: Find out when they are due! 11.3.3.6 Printing Quantity It is not uncommon for a thorough application to require 100 to 150 pages of printing, when you include copies of law cases to which the planning and zoning department may not have access, as well as a number of exhibits (including photographs). You could be facing a printing bill of several hundred dollars, or $8.00 to $30.00 per copy of the application submitted. This makes it worthwhile to work hard to understand how many copies you need to submit. Here are some possibilities: ●

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One for the Town Clerk Five (or eight or nine) for the members of the Board before which you will appear (some Boards require copies for alternates, some do not)

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One for the Secretary to the Board

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One for yourself

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One for your lawyer

That’s a possibility of 13 copies. If it is a joint meeting of the Planning Board and the Zoning Board, add another five (or more) copies. If you have decided on three-ring binders, print an extra cover page for each copy (to insert in the clear front cover of the three-ring binder). The printer will tell you whether to use cover stock (80-lb) or a more standard 24-lb paper. Cover stock is only necessary with comb binding that has no clear plastic cover. Also, print two extra copies of the cover page that you will have “date stamped in.” 11.3.3.7 Printing Quality You might think the least expensive way to print is to print on 20-lb standard white using your home printer. But this is a lot of printing, as you could be making 100 pages times 13 copies, or 1300 impressions. A copy shop may give you a better price for the black and white portion of the printing than is possible at home, when you add in the cost of inkjet cartridges. Color pages I leave to your own investigations. In any event, as you are no doubt aware, a laser printer will produce sharper images than an ink-jet printer. Moreover, 24-lb (maybe 28-lb if you insist on spending more money) bright

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white (brightness of 96 or more) will better support the impression that you are quite professional in everything you do and ready to go to court if necessary. 11.3.3.8 Binding I like one-inch, three-ring binders with a slip-in front cover duplicating the cover page of the document. Using a binder permits last-minute substitutions when you find an error or need to slip in one more letter from a neighbor, another photo page, or a new law case. Other alternatives are comb or spiral binding (which allows the document to lie flat) and GBC binding (which features a stiff plastic strip on the front and back that allows it to stand tall; it also requires a special punch). If using three-ring binders, be sure to print two copies of each cover page—one to go under the clear plastic on the cover and one to go inside, plus one extra front page to get stamped in with a date/time stamp.

11.4 Submitting Your Application The men and women who work out front as town clerks and secretaries in building departments, or departments of planning and zoning, are almost always nice people, deserving of respect. This does not mean, however, that they are completely worthy of your trust. Strange things can happen, mostly through innocent neglect or mistake, but they still happen. It is important that you be able to show that an application was submitted and the date on which it was submitted. Just one last thing before you leave to make the delivery. Make sure that at least one copy has all of the original signatures required (from you, your contractor, your PE, whomever).

11.4.1 Delivery If you are going to file the application with the Building Inspector or Code Enforcement Officer, call and make an appointment. It is a sign of respect. The Building Inspector, Zoning Administrator, or Code Enforcement Officer will write the covering memo that goes to any Board or Commission and you want it to be favorable. Let’s assume, though, that you are filing with the town clerk. You’ve got your copies ready for delivery, in a box, in your vehicle, and you drive to Town Hall. You walk in and present yourself to the desk. Smile. Talk: “I’m here to file an application. I think I have enough copies, but could you confirm that ____ copies is enough? And, while we’re at it, could you stamp in the one with original signatures, and two copies for my records?”

Every Building Department in the nation can put a date stamp that says “Received” on the front cover. If you find one that can’t, ask the secretary to write: “Received. [Date] [Signature]. Example: RECEIVED February 16, 2005 Maren Schumacher-Rasmussen

The Permit Application 255

11.4.2 A Photo? No witness, or still feeling insecure? Take a photo of the clerk holding the application, with the box of copies on the counter. Ask her to smile and hold up the three-ring binder. Tell her: “This is a really big day for me. I’ve been waiting to file this form all of my life.” (Or, “I need to prove to my boss that I was here, and not in some local watering hole.”) What if she doesn’t want to cooperate, smile. and hold up a copy? Take a picture anyway. You have a perfect right to do so. It’s a public office. You can later testify: “I took this picture on February 16, 2005, and it shows the applications on the counter as I filed them.” The surest possible proof? Have your witness take a photo of you delivering the application to the Secretary. Now you have a witness, a photo, and a stamped copy. See Figure 11.1 for a wonderful example of a photograph of an applicant submitting his application, complete with clock in the background to show the time of filing. (The application was granted, too; see Figure 11.2 for the approval letter.)

11.4.3 Before Leaving You want two copies with stamps for yourself—one for you and one for your lawyer. Don’t leave without checking to see that the date is correct. (Was it the last century when last the stamp was used?)

Figure 11.1 K0KT submitting his Building Permit application to the Code Enforcement Officer in Story County, IA. There will never be an argument—it was submitted at 3:42 p.m.

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Figure 11.2 The approval letter from Story County to K0KT.

11.4.4 The Reluctant Recipient It has been my experience (though just once) that there was some confusion as to who receives the application. It was a small town. The state statute clearly said that the application must be made to the town clerk, but the Building Department insisted that the application was to be filed with the Secretary to the Building Inspector (which was just plain wrong). Here’s how we did it. Applicant to Town Clerk: “I know that this goes to the Secretary in the Building Department, and I’ll gladly walk it down the hall to her, but could you please stamp these three pages?” (He was referring to the cover page on the original signature document, and the two copies for our files.)

The Permit Application 257 Town Clerk: “No one ever files with me. You are supposed to file with the Secretary in the Building Department.” Applicant: “I know, but my lawyer absolutely insists that I get a date stamp from you. Just this once, could you help me out? It costs way too much to have a full-blown argument with the damn lawyer.” Town Clerk: “OK. [Stamps the three pages.] Now walk it down the hall and do the right thing.” Applicant: “Thanks. You are saving me a lot of grief.”

This is what is commonly known as “blaming it on a third party,” and lawyers are used to being the person blamed. It comes with the territory. It’s right up there with “My doctor insists …, my CPA insists …, my teacher insists …, and my wife insists ….” The devil made me do it. Why am I getting excited about this? I have experienced each of the following: ●

●

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A lost application (completely missing from the town’s paper files) A town that took the position that an application is not filed until it has been stamped in after fire, water, police, health, and other departments have reviewed the application, so the stamp date on the document was almost three weeks later than the originally filed date (that will never happen to me again) The need to prove a filing on Wednesday, when the Planning Board met to announce the draft of a bylaw change on Thursday—which would have effectively cut off any claim to vested rights (the ability to apply under the old bylaw, not the new)

Now your application is filed. You can prove it was filed on the date necessary to get on the agenda for the next meeting of the Board (so you don’t have to wait a month) and, hoping this never happens to you, you can show that you filed before a change in the bylaw was proposed to foreclose your project—giving you the right to apply under the prior bylaw. While you are there filing your application, if a question is asked to which you do not have the answer in the application or supplementary materials, do not offer to come back and refile another day. File today and offer to supplement later. A rebuff for a minor matter is a trap, and any question you have not already addressed is minor, believe me, because your application (any application your lawyer has given you permission to file) is thorough. One more thing about the need for a date/time stamp. You may be lucky enough to live in a state like Pennsylvania which has a “deemed approved” statute (35 P.S. §7210.502). It establishes a 15 business-day rule, after which an application for a Building Permit is deemed approved if no action has been taken. If the drawings are prepared by a Pennsylvania-licensed engineer, architect, etc., and the engineer or architect certifies that the plans meet or exceed the Uniform Construction Code, then the period is only five days! There is a 30-day period for “other construction,” which some municipalities will argue applies to antenna-support structures, but even if you concede that, there is still a time period after which an application upon which no action has been taken is deemed approved.

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The full text of the statute is available on the CD as filename PA_deemed_approved.pdf. Pray that you have such a statute. On the other hand, you could be filing in Georgia, where it seems that the Building Department can take forever, and your only alternative is to go to court seeking a “writ of mandamus.” That’s no fun.

11.5 Follow Up Getting nervous, about a week or 10 days after filing his application, a client wrote to me: “I am going to call the ZO [Zoning Office] on Wednesday morning to see what progress has been made over the two weeks since filing. Any words of advice before I make that call?” I replied: “Actually, yes.” The correct questions are: ●

Have you had a chance to go through my Building Permit application?

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Is there any more information that your department will need in order to make a decision?

These are low-pressure questions, and friendly. “When are you going to grant my permit?” is high pressure and assumes a conclusion. That is unfriendly. Ask the friendly questions. You will get the answers you need. Likely answers include: ●

●

●

●

We sent it out to Town Counsel for an opinion. The City Manager/County Executive is reviewing it [a bit discouraging, by the way, since he should have nothing to do with it]. Actually, I haven’t had a chance to wade through it yet. It’s quite a bit denser than most submissions I see. Actually, I’ve been through it and sent a copy to the Zoning Administrator/Building Inspector/ Code Enforcement Officer. As soon as he finishes with it, you’ll have an answer.

Your best comeback to a vague or unhelpful response is “When should I check in again?”

11.6 Format of the Sample Permit Application One of my clients was gracious enough to allow me to supply their actual application as part of the CD in this book; see filename Commercial Application Sample.pdf. While every application is unique, the application of The Fifth Estate Tower should give you a very clear idea of both the proper format and content of an application, as well as the range of supplemental material (Exhibits and Appendices) you may need to provide. What follows is a brief discussion of just two elements that are common to all applications.

The Permit Application 259

11.6.1 Blank Page If you’ve ever read a stock prospectus, you’ve seen that they follow something of a prescribed format. This occasionally results in a blank page. For reasons hard to fathom, the page is usually labeled: This page intentionally left blank.

As you set out to prepare your application, you may find that you’d really like to leave blank the rest of a page. In that case, you’d be tempted to write: This area intentionally left blank.

James O’Connell, Esq., of the Illinois Bar, and formerly with the Office of the Attorney General in that state, came across the following explanation and development of the theme for such a blank and was kind enough to provide it. Unfortunately, the name of the original author is not known. This area intentionally left blank. Well, not completely blank, since the above non-empty disclaimer appears on the page. What is meant is that this area is devoid of meaningful content related to the rest of the document. This area serves only as a separator between sections, chapters, or other divisions of the document. The area is not completely blank so that you know that nothing was unintentionally left out, or because of an error in duplication, or even because of some other production problem. If this area were really blank, you wouldn’t be reading anything. Therefore, this area has not been left blank by accident, but is left non-blank on purpose. The statement in the area should say: “This page was intentionally left non-blank.”

And now, with that moment of legal levity passed, we consider further the sample permit application. The cover page follows. Cover pages are a nice touch.

11.6.2 Cover Page STATE OF NEW HAMPSHIRE TOWN OF WOLFEBORO PLANNING BOARD & ZONING BOARD OF ADJUSTMENT

APPLICATION TO ALLOW REPLACEMENT OF AN EXISTING USE UNDER RSA 674:19 OR UNDER ARTICLE XXVI, §§175–159 TO 175–175 OF THE WOLFEBORO CODE AND TO APPROVE THE PLACEMENT OF PERSONAL WIRELESS SERVICE FACILITIES ON THE REPLACEMENT STRUCTURE SUBMITTED ON BEHALF OF: THE FIFTH ESTATE TOWER, LLC

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JAY WILLIAMS, JR., MANAGING MEMBER c/o BROADCASTING UNLIMITED, INC. 35 MAIN STREET WAYLAND, MA 01778 EMAIL: [email protected] BY ITS ATTORNEYS: FRED HOPENGARTEN SIX WILLARCH ROAD LINCOLN, MA 01773-5105 781/259-0088; FAX 419/858-2421 EMAIL: [email protected] AND WILLIAM PHILPOT, JR. HAUGHEY, PHILPOT & LAURANT 816 NORTH MAIN STREET LACONIA, NH 03246 603/524-4101; FAX 603/524-1775 EMAIL: [email protected] DECEMBER 7, 2004

C HA P TER 1 2

The Public Hearing—Your Big Moment in the Spotlight

The public hearing serves several purposes. Among these is that, in the words of Supreme Court Justice Brandeis, “Sunshine is the best disinfectant.” The public hearing is the very essence of democracy. It is supposed to guarantee that all sides are heard, but there are rules and common procedures—formal and informal. Here are some thoughts on getting through the process, which actually begins long before the hearing itself.

12.1 Advertising 12.1.1 Newspaper You will no doubt be required to pay for the advertisement in the local weekly or biweekly newspaper where legal notices appear. This will cost $100 and up, as it is usual for the notice to appear twice. As a data point, for a commercial TV antenna in a major market, it cost $426.60 for a notice to appear twice in a newspaper of large circulation. If there is a continuance, it is unlikely you will be required to advertise the notice again. But note that if you withdraw the application, perhaps because you feel that you still need to gather more information for presentation to the Board, you would then be required to pay for a new notice (and a new round of registered mailed notices, too). The notice will probably parrot the opening paragraph of your application. You can save yourself some grief if you work with the secretary who puts the ad in the paper. If what you propose is less than 200 feet high, try to make the notice refer to an “antenna-support structure for [paging, an FM broadcasting antenna, an HDTV broadcast antenna, etc.]” and not a “tower.” Of course, if you are proposing an AM broadcast antenna, or an array of towers that will be the AM antenna, then it is not a “support structure,” as the tower is the antenna itself. For an AM broadcast antenna, the notice should be for “the erection and maintenance of an AM broadcast antenna system.” You can even try to make it a form of advertising, by suggesting that the notice might read “to erect and maintain an AM broadcast antenna for a new AM radio station at 1490 kHz.” You probably cannot control the wording of the legal notice, but you may be able to influence it. Do the best you can. 261

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The newspaper advertisement will appear in the “Legal Notices” section of your local weekly, in very small type. It may look something like this actual (but disguised) notice:

THE COMMONWEALTH OF MASSACHUSETTS TOWN OF UNFRIENDLY Zoning Board of Appeals NOTICE OF PUBLIC HEARING In accordance with the Massachusetts General Laws, Chapter 40A Section 10 Zoning Bylaws, you are hereby notified of a public hearing. The Zoning Board of Appeals will hold a public hearing to review the application of Channel nn Television, Inc., of 28 Noname Road, Unfriendly, MA, for a special permit as per the attached notice: The Town of Unfriendly Zoning Board of Appeals will conduct a public hearing on Wednesday, April 17, 2009, at 6:30 p.m. at the Unfriendly Town Hall, 6 East Main Street, Unfriendly, MA, to act on the petition of Channel nn Television, Inc. The petitioner is requesting a special permit in order to install a 48⬘ digital (DTV) antenna and associated site work on an existing tower located at 28 Noname Road, Unfriendly, MA, Assessors Map 88, Lot 73. The existing tower is a structure over one hundred feet in height, and any repair, alteration, or modification requires a special permit in accordance with the Town of Unfriendly Protective Bylaws, Article XI, Section 17–100⬘ High Structures. All persons, parties, or corporations interested therein may appear and be heard in relation thereto. Town of Unfriendly Zoning Board of Appeals, Gary Guilty, Chairman Nov. 3, 10

Note the odd mention of “Nov. 3, 10” at the end of the actual notice. Though a mistake, this is not uncommon. The Town tells the paper which editions the advertisement should run in. The typographer thought it was part of the notice. Things like that just happen. There’s no need to get upset.

12.1.2 Posting In some jurisdictions you are required to post a sign or two out front, readable from the street, about the upcoming public meeting. Don’t get cute and hide it behind a bush. The temptation may be great, but you will regret it, because opponents will use your hiding strategy to argue that you can’t be trusted to conform your other actions to the requirements of the law. See Figure 12.1 for an example of such a posting.

12.1.3 The Public File Long before your “big night,” be sure to drop by Town Hall. You’ll want to examine the public file on your case. It could have information on a prior application for a Building Permit on the same lot that was denied. If you are not the first owner of the tower, it could have information on how things went the last time anyone tried to modify the permit under which the tower was constructed.

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Figure 12.1 A clearly visible sign announcing that there is an application pending regarding this property.

You might be amazed at what is in your property file. For example, in the case of Bodony v. Sands Point (NY), 681 F. Supp. 1009 (EDNY 1987), the applicant was at Town Hall nosing through the file for his address when he discovered papers showing that the Board of Zoning and Appeals, well in advance of the hearing, intended to deny his application. There were letters to Town Counsel requesting help as to how to go about denying the permit. The applicant’s lawyers used that information about the Board’s prior intent (i.e., failure to approach the decision with an open mind) very effectively. In a broadcast case I once handled, I found a memorandum from Town Counsel to the Board of Selectmen, recommending against filing of an appeal (a few years ago, when the tower was first erected). Ordinarily that would be unavailable if you asked for it, because of the “attorney–client privilege.” However, as it was in the public file, I read it, paid for a photocopy, and took it away. Everyone at the station was amazed that I’d found it, and I looked like a hero. It was useful. Just before your “big night,” drop by Town Hall again, and examine the public file once more. You may learn that someone has circulated and submitted a petition or that there are letters on file against you. The petition or letters may make false claims. This gives you a chance to prepare exhibits to counter such claims. You don’t want to be surprised.

12.1.4 Visit the Hearing Room While visiting Town Hall for the last time before your hearing, be sure to see the hearing room. Observe where you’ll find electrical outlets. See if there is a blackboard, an easel, or a podium. Inquire

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if there is a screen you can use to display slides or a PowerPoint. Ask if there is an AC extension cord (please learn from my experience on this).

12.1.5 Find Out About Presentation Timing In conjunction with your visit, be sure to ask the Secretary to the Board or the Planner how much time you’ll have to open. (The proponent always goes first.) Some places give you as much time as you need, but I was once in a Florida county where the opening was timed and strictly held to 5 minutes, complete with a red light to tell me when my time was up. (Afterward, each member of the public was given 3 minutes, and there were 11 of them, totaling 33 minutes. I then had only, and exactly, 5 minutes to reply.)

12.2 Your Big Night The public hearing is typically held on only one of four nights, Monday through Thursday. Friday nights are not favored because it is difficult to ensure that members of the Board will attend that night. A Friday night hearing may also conflict with some members who are celebrating the Sabbath. For similar reasons, hearings on Saturdays are rare, and “never on Sunday.” It will be held in Town Hall, a municipal building, or a school. The hearing room typically uses some long tables, sometimes called “catering tables.” The members of the Board will face the audience. They may have nameplates in front of them. The audience has no tables and typically sits on uncomfortable folding chairs looking back at the Board. If you arrive early (and you should), volunteer to help set up the room. It is a nice thing to do as a citizen. It shows that you observe common courtesies. It allows you to introduce yourself. Do not use the time for lobbying a member or two, as this is seen as impolite and may well be illegal as ex parte communications (communicating to a Board member without the presence of others, especially opposing parties). This is not to say that Board members have never spoken with parties outside of the public hearing, but trying to do so right then and there, for the first time, might make Board members nervous and suspicious. If you are going to show slides or project a PowerPoint presentation, you will need time to set up. With permission of the Chair, please set up before the hearing starts, as holding up these volunteer board members while you fumble with equipment is simply bad form. In any event, here’s a checklist of things to bring (as appropriate): ●

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Clipboard (it is rare to get a flat surface—a desk—on which to write) and pad of yellow lined paper Yellow felt-tip pen (for calling attention to specific elements of a bylaw) A complete copy of your application (and a spare, in case you need to let someone in the audience look at a copy; you don’t want to give up your own copy and then look awkward trying to get your copy back to respond to a question)

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A laptop or netbook computer

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A projector with connecting cables (test everything out before leaving for the hearing)

The Public Hearing—Your Big Moment in the Spotlight ●

An extension cord (25-foot minimum) with at least three outlets

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A portable screen

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Speakers, including a portable amplified woofer (if you are using audio)

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If this is an application for an HDTV transmitting antenna and you don’t use a video, you should forfeit your role in the entertainment business. But remember, if you are going to use a piece with on-air talent, keep it short and information filled. This is not the time to give out tickets to an upcoming concert, but a quick visit to the advertising department might be in order to see what freebies they might have of no consequential value for a “leave behind” (pens and pads of paper, refrigerator magnets, and bumper stickers come to mind). In Figure 12.2, the Vermont Environmental Board sits at “catering tables” set up in a church social hall. The attorneys have tables and chairs to the left. The witness sits straight ahead. Not exactly a TV courtroom, eh? In other situations, before town Boards, there may be no place to spread out materials—or even a place to put a computer and projector for a PowerPoint presentation. These setup matters make it all the more important to learn about the venue in advance; for example, you may need to bring your own extension cord and screen.

Figure 12.2 Martin Blank, Ph.D., appearing before the Vermont Environmental Board. Not exactly a TV courtroom, eh?

If you are lucky, the members have nameplates in front of them. Try to write down those names so you can later remember who said what. Note also that there is no podium in this photo. Sometimes a Board will have one from which you will speak, and sometimes there will be no podium.

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Bringing along your own projection screen is a whole lot better than trying to project onto the 1950s dark wood walls. The man sitting alone at a separate table in front of you may be the Zoning Enforcement Officer, sometimes called the Zoning Administrator or Code Enforcement Officer (yes, the CEO!). The ZEO/ZA/CEO or Town Planner may also have a nameplate. The CEO does not vote, but the CEO has seen how the Board votes many times and has a sense of what questions they will ask. Whatever else you do, be sure to time your presentation in advance. The puff piece, plus your presentation, should not, under any circumstances, exceed 20 minutes total. Never. Twelve minutes would be better. Ten minutes is excellent. Less than 10 minutes and the Board may not quite understand what you are applying for and under exactly which bylaw provisions. In any event, if you learn that you’ll get only 5 minutes or 10 minutes prepare to obey that time limit. Before the meeting begins, go up and introduce yourself to the Board, if you haven’t done so previously. Hand a business card to the Board Secretary, as well as a piece of paper labeled “Potential Participants” with the names of every person on your side who may speak (RF engineer, neighbor, appraiser, etc.). Provide the same to the stenographer, if one is present. The Secretary and stenographer will appreciate that. Make him or her your new best friend and you’ll get copies of the minutes quicker. You’ll also want to help the Chairman by informing him or her how to pronounce your name (correcting the Chairman later is bad form). If there are hearings before yours, do not leave the room. Stick around and see how they go. See if this Board likes a touch of humor or whether it shows a profound distaste for a light touch. See if they are formal or informal. See if they ask questions as proponents talk, or only after a presentation is made. See if they vote right then and there. Get comfortable with the process. If you are reading this section a long time before your own hearing, go to a Board meeting in advance and sit through one evening session. If asked “Is there anything we can do for you?” reply “No, thanks. I’ll have an application coming in soon and I wanted to see how things work, so I can be more helpful to the Board when my time comes.” They’ll appreciate that. It is a sign of respect. In addition, sitting through a session from start to finish really will help you prepare. You’ll feel more comfortable when your time comes. Take a seat near the front and near an aisle. This reduces the amount of stumbling and fumbling when you rise. Personally, I like the front row, as it allows you to step to the side and make your presentation so that both the Board and members of the audience can hear you. Now let’s assume the Chairman or Secretary announces your item on the agenda. You will be expected to stand to make your case. Begin with your name and the purpose for your presence.

12.2.1 Your Presentation “Good evening. My name is ___________. I’m here this evening from ___________ [business name of applicant]. You may better know us as Oldies 101. I’m the Chief Engineer/Owner/Whatever. I’m here tonight on an application for a Special Permit under Section 123.456.”

Cite the exact section of the bylaw in excruciating detail, since this tells them that you are prepared. At this point, at least one member of the Board is going to reach for his own copy of the bylaw and start

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reading it—while you continue. Other members will be rustling papers so they can be sure that it is your application in front of them. Don’t let this seeming inattention distract you. Your application may be anywhere from 2 to 150 pages long. Under no circumstance should you read from it. Furthermore, the best presentations are made from outlines and are not read. But you knew that. Unless you have Ronald Reagan’s speech-reading skills (and you don’t), you will be much, much better off speaking from an outline. Despite whatever you’ve been told about having a full opportunity to answer questions later, make sure that this presentation has a beginning, a middle, and an end. Make it complete unto itself. But make it brief. If you go over 10 minutes, you’d better have a good reason. A really good reason. A really, really good reason. Nonetheless, show what you intend to do; explain why it meets all the requirements of the bylaw or ordinance that applies; tell them if some bylaw does not apply (and why), why the site you’ve chosen is the best site, what the total height is going to be, and that you’ve spoken to the neighbors you could find; and then ask for exactly what you want from the Board. What is meant by “what you want”? You may want some waivers of filing requirements, a Variance from a setback requirement, and a Special Use Permit. I don’t know what you need, but you should be very certain about what you need. Do your homework in advance. At this point it is important for you to have read the state statute on municipal hearings. Few people do. You might be surprised to learn that you are entitled to cross-examine opposing witnesses, which is true in Maine. On the other hand, this may not be permitted in your state (this is more common). Expect to have some nasty, accusatory questions put to you—some relevant, some not so relevant. Practice your answers to the tough questions in advance by rehearsing the hearing with friends and engineers with whom you get along. Always answer by addressing the Chairman of the Board, not the questioner. And never attack an opponent—only his arguments. Here, from the 1915 version of Robert’s Rules of Order, now in the public domain (http://www. robertsrules.org/rror-07.htm#43), is the rule on decorum. Rule 43 was wise then, and is wise now. It reflects civilized democracy in action: 43. Decorum in Debate. In debate a member must confine himself to the question before the assembly, and avoid personalities. He cannot reflect upon any act of the assembly, unless he intends to conclude his remarks with a motion to rescind such action, or else while debating such a motion. In referring to another member, he should, as much as possible, avoid using his name, rather referring to him as “the member who spoke last,” or in some other way describing him. The officers of the assembly should always be referred to by their official titles. It is not allowable to arraign the motives of a member, but the nature or consequences of a measure may be condemned in strong terms. It is not the man, but the measure, that is the subject of debate. If one desires to ask a question of the member speaking, he should rise, and without waiting to be recognized, say, “Mr. Chairman, I should like to ask the gentleman a question.” The chair then asks the speaker if he is willing to be interrupted, or the speaker may at once consent or decline, addressing, however, the chair, through whom the conversation must be carried on, as members cannot directly address one another in a

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Here’s the philosophy you should keep in mind, in a few punchy sentences: 1.

Try to know more about the facts than the other side.

2.

Never let the other side control the agenda. (Example: When the other side says it will look bad, do not answer that it will look okay. Instead, cite your First Amendment rights as a broadcaster or the advantages of cellular telephone to a stranded motorist, and why it is in the best interest of the community that the inevitable tower be the one proposed.)

3.

Answer lies with facts, citing the best possible (least contestible) source. And never let the lies hang around in public uncontroverted, lest the lies become “facts” in the minds of the townspeople.

4.

Make sure the record shows that the other side was always informed of your proposal and never surprised. You don’t want a Court to later say: “At the last minute, the Applicant revealed …” or “The ZBA was surprised to learn ….”

5.

As a continuing strategy, always leak good facts and repeat good facts. Most people don’t get the message the first time. As President Roosevelt, a former Secretary of the Navy, once said: “10% of the people never get the word, and then there’s the Navy.”

Here is a sample list of some difficult questions and suggested answers. (A full set of answer cards, formatted to fit on 4 ⫻ 6-inch index cards can be found on the CD as filename Answer Cards.doc and Answer Cards.pdf.) Remember what you were taught in customer-service school: Validate the concern and answer the question. “I’m a doctor and I rely on my beeper and cellphone. Lives are at stake. What if you interfere with my beeper and cellphone?”

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Suggested answer: “Given the doctor’s responsibilities, she has every right to be concerned. However, we’ve been using the same transmitter, at a comparable height, in Adjacentville for many months now and I’ve had no reports of interference. I would point out to the Board that this topic is entirely outside of the Board’s jurisdiction, as it is completely preempted by federal law. Nonetheless, whether it is a television, VCR, cable TV, beeper, or whatever, should a problem arise, I pledge to work in good faith with anyone concerned to resolve the problem. [If you are a broadcaster, be sure you know the FCC requirements on blanketing interference.] However, you should know that a higher antenna is less likely to cause interference than a low one, because it is farther away. If interference is a concern, you should ask me to put the antenna up 1500 feet high—to be really far away.” “When you came around, you misled me. I didn’t realize that what you were planning was going to be so monstrous.”

Suggested answer: “Ladies and Gentlemen (remember to address the Board, and do not respond directly to a person in the audience), I am very sorry that anyone feels he was misled. If the gentleman feels that way, then I failed in my mission to make the plan clear. When I walked around to meet with the neighbors, I carried a copy of the application you have before you tonight. If someone remembers my presentation differently, I assure you I had no intention to mislead. The proposal then was the same one before you tonight. I’ve tried to explain the project to the neighbors before this evening.” “Isn’t this stuff really old technology that’s going to be replaced by the Internet and satellite communications or cellphones? Why do we have to have one of these things in our neighborhood?”

Suggested answer: “Members of the Board, I’m also a big fan of new technologies. But, when a disaster comes, will the Internet or cellular phone [pick an appropriate service for comparison] be there for emergency communications? Battery-powered radios work even after the cable TV wires are down. [An alternative: Cell phone systems work on the principle of reusing frequencies every few miles. Each satellite is just one cell tower.] Nonetheless, we’re not talking about a permanent change here. Antenna systems go up and antenna systems come down. You could condition the permit by insisting that the tower come down if it is not used for communications purposes for 18 months. I do believe that this proposal qualifies for a Special Permit under the bylaw and that it should be granted, despite whatever other methods of communications are available.” “It’s going to ruin our nice neighborhood.”

Suggested answer: “Ladies and gentlemen, if it were true that the antenna system would ruin the neighborhood, I wouldn’t propose it, because we are part of this community too. However, as the photos in my application demonstrate, it will not be visible at all from several directions, even in winter, and from the spots from which it can be seen, the tower will just look like a pencil line against the sky. Finally, as you can see from examples of similar antennas located in [name a fancy neighborhood or town], Western Civilization as we know it will not end if this permit is granted. It will not change the character of the neighborhood or the zoning district, which was residential and will remain residential. Here are photos of comparable antennas in community situations where property values continue to improve rapidly.” “We already have a radio station. Why do we need another?

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Suggested answer: “I’m pleased to learn that you are a radio listener, and we hope to attract you to our station because we’ll be doing different things. Besides, you believe in competition, don’t you? It makes everyone work harder. However, the Federal Communications Commission is charged by law with deciding which stations go where. Because radio signals cannot be contained to political division lines, nationwide regulation in this area was required. Only the FCC can decide where stations may go. “Nobody really needs this, right? It’s just another [radio station, an opportunity to get into an accident], right?”

Suggested answer for broadcasting: “Our station will provide a unique service, serving our community, as we are required to do by law. If you are really saying that you don’t like the programming we contemplate, that would be censorship—wouldn’t you agree? The U.S. Congress assigns the licensing of broadcast stations to the FCC, not local communities.” Suggested answer for cellular telephone: “The controlling federal statute has been interpreted by the Courts to say that we must provide service, and the zoning ordinance cannot result in significant gaps in our coverage. We have presented evidence that this site is necessary to avoid a significant gap in our coverage.”

12.3 Substance During the course of your presentation, you must never assume that all of the members of the Board have read your written presentation. If you get a question that can be answered straight out of the written proposal, simply begin: “Good question. I apologize for not covering it earlier in my oral presentation. May I call your attention to page 12, where I show that this is true.” Don’t smirk. Don’t even think about implying that a better-prepared Board member would have spotted it. Here are a few more tips: ●

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Don’t talk about what they allow in a neighboring town. You can be sure that the Board members here in your new town feel that they’d never stoop that low. Do stress that you’ve tried to be thorough and that you’ve tried to seek out the placement of the antenna system on the site that is the least visible to the most families, not because it is ugly (it isn’t), but because you want to be a good neighbor.

12.4 Summary Eventually, it will be time to sum up. If things have been going well, use just one sentence. “Members of the Board, I’ve put a proposal before you that meets all the requirements of the bylaw, shows consideration for the neighbors and deserves your support. I ask that you grant [a Building Permit, a Special Use Permit, whatever it is you are seeking] under Section 123.456 of the bylaw.” If you’ve been getting slammed, emphasize everything you’ve done to prevent what they’ve witnessed: “Members of the Board, I’m more than a little stunned by the opposition to this proposal. We assembled it over weeks and months, after consultations with [name the other parties—engineers, surveyors, the Town Planner, other town father and mothers, as well as neighbors with whom you consulted]. I came here proposing an antenna system designed to limit visual impact [if true]. It deserves an affirmative vote under the ordinance, state, and federal law.”

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12.5 What I Bring to the Hearing If you should find yourself packing up to appear before a Planning Board, Board of Appeals, or the like, perhaps you will find it useful to know what I keep in my permanently packed three-ring binder. These details are shown below. In addition to my permanent three-ring binder, I bring a copy of the local zoning code (bylaws), which can be bought at Town Hall for a nominal cost (in 2009, this is usually $10 to $45, but sometimes it is free when the bylaw is online). This permits you to respond to specific questions on how that code applies. You could, especially with respect to radiofrequency interference, print out some legal cases from this book’s CD that you think are relevant to your situation.

12.5.1 Federal Law 12.5.1.1 Which Structures Must Be Registered with the FCC? See filename FCC-Registering Antennas.pdf on the CD and http://www.fcc.gov/wtb/antenna.what. html. This information includes the 200-foot height rule, airport rules, and exemptions. Use: Why argue about what the rule may be when you can bring a copy? 12.5.1.2 Compliance with Commission’s Rules Implementing the National Environmental Policy Act of 1969 (NEPA) See filename FCC & National Environmental Policy.pdf on the CD and http://www.fcc.gov/wtb/siting/ npaguid.html. An environmental assessment (EA) is required only in eight environmentally sensitive situations (47 CFR 1.1307(a)) or for radiation in excess of Office of Engineering Technology (OET) 65 guidelines (47 CFR 1.1307(b)). Use: To show that no EPA filing is necessary or to show that the filing you’ve done is all that is required.

12.5.2 State Law ●

The state zoning statute

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The state statute governing the Board you are meeting

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The Building Code, §3108.0 Radio and Television Towers (or equivalent)

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The Building Code, §3109.1 Radio and Television Antennas (or equivalent)

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The Building Code, §1611 Wind Load (specifies mph by zone and psf by height, zone, and exposure), including Table 1611.4 (or equivalent) The state statute governing requirements for professional seals (such as a surveyor or professional engineer, including any section that waives a requirement, permits nonresident seals, or says that no seal is required for standard manufactured goods)

12.5.3 Radiofrequency Interference (RFI) There is always someone who does not believe that the Board has no power over RFI. Be prepared to hand over a copy of the statute (47 USC §302a), and the three big cases.

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12.5.3.1 The Federal Statute Refer to 47 USC §302a, Devices which interfere with radio reception. Key wording in §302a (f)(2) is “A station that is licensed by the Commission pursuant to section 301 of this title in any radio service for the operation at issue shall not be subject to action by a State or local government.” 12.5.3.2 Cases Cases on the CD and completely cited and described elsewhere in this book include: ●

Broyde v. Gotham Tower (a Florida case)

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Southwestern Bell Wireless, Inc. v. Johnson Co. Board of Co. Commissioners (a Kansas case)

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Freeman v. Burlington Broadcasters (a Vermont case)

12.5.3.3 Inverse Square Law My binder also includes an illustration showing the inverse square law (1/r2 ) to demonstrate that power is reduced as the square of the distance. There are many sources for such a drawing, including Wikipedia.

12.5.4 Nomenclature I bring a pictorial to help a Board understand the various parts of an antenna: the mast, the boom, the elements, the support structure, the guy wires, and so forth. See Figure 12.3 (filename Antenna Nomenclature.pdf on the CD).

12.5.5 Public Service Include citations to your AM/FM/TV station from the governor, the mayor, etc., for public service (perhaps during a hurricane or snowstorm).

12.5.6 Bioeffects or Hazards (Electromagnetic Radiation) ●

FCC OET 65

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Any relevant state code

12.5.7 Screening Sight Lines and Screening of Towers by Trees is a graphic prepared for the author; see filename Tree Screening.pdf on the CD.

12.5.8 Property Values ●

“Electric Transmission Lines and the Selling Price of Residential Property,” The Appraisal Journal, October, pp. 490–499, 1979. See filename Electric Power Study.pdf on the CD. This

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Panel antenna (cellular telephone)

2 bay UHF antenna (mobile radio)

VHF/UHF ground plane

VHF yagi

Tapered monopole

Self supporting lattice tower with platform on top

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UHF fiberglass omnidirectional whip

VHF fiberglass omnidirectional whip

VHF dipole

Microwave parabolic dish

Guyed lattice tower, showing land requirements, with three sets of guys and three guy anchors

Figure 12.3 Standard nomenclature for antenna types and elements.

document shows no effect on prices of homes more than 50 feet away from power line towers. (Be sure to point out that, unlike power company transmission lines, radio antennas may someday go away, so there is no possible permanent effect. Note: If anyone finds an article later than 1979 in a serious appraisal journal, please let the rest of us know.)

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“Market Analyses to Determine Impact of Property Values in Proximity to Tower Sites,” prepared for BellSouth Mobility (April 21, 1996; Gwinnett County, GA): “… the construction and on-going presence of BellSouth Mobility cellular towers have no adverse effect on surrounding and adjoining residential property values.” See filename BellSouth Mobility Property Value Study.pdf on the CD. “Impact Study of Two Communication Towers/Three Subdivisions, Cordova, Shelby County, Tennessee 38018,” prepared for Contel Cellular (March 14, 1995, Memphis, TN): “… no negative impact exists from a communication tower and its relationship to single-family properties as tested.” See filename Memphis PCS Towers-Summary.pdf on the CD.

12.5.9 Birds ●

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MA Audubon Society letter from a field ornithologist saying, “Those of us who love birds are not concerned about small towers [less than 200 feet].” See filename Audubon Letter.pdf on the CD. Summary page from U.S. Fish and Wildlife study

12.6 Your Opportunity to Make (or Break) Your Case Your oral presentation will make, or break, your case. If you are calm, respectful, professional, and prepared for all the usual questions, you will do well in most circumstances. But you knew that. If you are unprepared for the inevitable questions and angry when you answer them, you will be hurt. A few tips on what can really hurt you: ●

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Do not tell the Board that they have to give you this permit because you are entitled to it under federal law. That’s not really what any preemption says. If you are arguing preemption, you must do so in measured tones and make the smallest possible claim. For example, if you are applying for an AM broadcast station, do not claim a preemption for all broadcast stations. If you are seeking to fill a “significant gap,” limit your claim to this one gap. Do not tell the Board that you could do this easily in another town you name. The Board members don’t care. In fact, the Board members truly and sincerely believe that the reason their town is better than that other town is that this town exerts more control over such things as zoning matters. Do not tell the Board that what you propose will be invisible, unless it is really true. How could it be truly invisible? It could be, if it is below the tops of trees, if it is blocked by trees, or if it is set against a backdrop of trees that go higher up a slope. On the other hand, you can always say that people really don’t spend time looking up, that it will quickly become a routine feature, that it will go away when you move or when it is no longer in use as a communications antenna support structure (a condition you’ll gladly accept), and that the impact is limited. All construction has some impact and this proposal has an acceptable impact, within the bylaw or ordinance. Use the language of the bylaw—”not materially adverse,” “not significantly detrimental,” etc.

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On the other hand, the following is true and can help you: ●

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Be respectful (not belligerent), even when asked a question that is designed to enrage you (such as: “Nobody really needs this, right? It’s just entertainment, right?” “It’s just right-wing talk radio, right?” “It’s just rock and roll, right?”). Your station will be available as a resource in times of public emergency. The federal government has already decided that your license is in the public interest, convenience, and necessity.

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Your activities are in the public interest.

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All elements of the bylaw or ordinance for this request have been met.

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It will be safe.

For advice on what to do when your moment in the spotlight is over and the Chairman has ended your event for the evening, see Chapter 13. It discusses what to do immediately after your last words (which, incidentally, are always: “Thank you, Mr. Chairman/Mme. Chairman”). Here are some words of wisdom from one client, concerning zoning for tower(s): A few comments on my experience in dealing with the town authorities and the value of having the right attitude. … When I faced the local Zoning Board of Appeals with my tower permit application, the whole room was filled with neighbors who were opposed to it. We [Fred Hopengarten and I] won the permit under very difficult conditions for the following reasons: 1.

Our homework was done. We had answers prepared for every potential question. As each question was asked during the hearings, a carefully written document was submitted to the record in response. No information was omitted or exaggerated in any way. Every fact presented was supportable.

2.

We listened carefully to the specific concerns raised by the opponents—and responded to every issue. We demonstrated a high degree of flexibility. We did not, however, compromise our most important requirements—the height and the types of antennas to be installed.

3.

We cooperated fully with the members of the Zoning Board of Appeals. We considered every question carefully. We showed respect for each individual and his position. We provided every piece of information requested immediately. When the Board members came to the site visit, they were treated to a complete tour of the property, which included clearly marked locations of several potential tower sites and guy anchors as well as trees marked with their measured heights for reference.

4.

Our primary opponent made us look good. The most vociferous opposition came from one neighbor. He is an attorney. Fortunately, he was not skilled in these matters. His attitude was extremely offensive to the Board. After making many unreasonable arguments and showing a lack of respect for the Board and its process, he was asked to be seated because his “input was no longer needed.” The other neighbors were somewhat embarrassed at this point because they had chosen to allow him to lead their opposition to my application. He essentially showed that a bad attitude can drive your case in exactly the wrong direction.

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I extended an olive branch to the entire neighborhood in my closing remarks—letting them know that I didn’t hold their opposition against them, and that whatever the outcome, I would continue to be a good neighbor—and that I would expect the same of them. I believe the Board saw this as a mature gesture, which only added to the long list of positives for our case.

Bottom Line—During deliberations, Board members commented on the “quality of the presentation by the applicant.” They were also impressed with the fact that I had dealt directly and honestly with the neighbors. Had we presented the same case and all the facts with “an attitude,” we would most certainly have been denied. Instead, I now have both an 80-foot tower and a neighborhood that gets along just fine.

From Bill Sohl (Councilman for Mt. Olive Township, NJ), here is some solid, positive advice: A little free advice for those working with municipal government officials: “You’ll catch more flies with honey than with vinegar.” Be nice. Be agreeable. As someone very knowledgeable once said, “Be wise as serpents, gentle as doves.” Know your stuff, but don’t throw it in their faces. I am an elected official myself. Remember, like it or not, the officials hold all the cards and even if you are right, you can waste much time, effort, and $$$ fighting to get your way if you take an acrimonious attitude. You don’t have to kiss up—just be polite, open, and willing to listen. Show them (as early in the process as you can) how you can offer a workable compromise that allows them to save face, yet preserve the local communications resource. Show them what a resource it is, and give them just a taste of the depth of technical, electronic considerations that go into an efficient, non-interfering station. Be sure they are the ones who “figure out” the solution for your tower or antenna needs that you are trying to lead them towards. Don’t force them (by your abrasive attitude) to dig in their heels. Remember, they are political and trying to represent those who will keep them in power. Living with your neighbors means compromise for everyone, except maybe a dictator. Most officials are willing to consider alternatives. Be sure you are too. Don’t try to be a bully. It won’t work!

Mike Lazaroff, Esq., of the Pennsylvania Bar, adds: Like Bill Sohl, I am also a local elected official and agree wholeheartedly with the advice given. We try to be reasonable and fair with all applicants, no matter what they want to do, but everybody is much more satisfied with the outcome when people don’t come in with an arrogant, “know-it-all” attitude. You’ll find that most people are a lot more reasonable than you’d expect if you make an honest effort to be cooperative.

Finally, some notes from Jim Idelson: Lessons Learned from the Sudbury, MA, Experience: ●

The nomenclature sheet was useful. [See Figure 12.3 and filename Antenna Nomenclature. pdf on the CD.]

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It would be nice to have positive articles to hand out when the question comes up in which [radio, TV, cellular telephone] is described in negative terms, perhaps as quaint, or perhaps unnecessary in this era of modern technology and the Internet.

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Include recent articles showing what your station, other stations, or cellular telephone did in the most recent crisis or hurricane or flood. The articles should prove that the emergency aspects of your service are still vibrant.

The Public Hearing—Your Big Moment in the Spotlight ●

Get a number as to how many towers there are nationwide. Include TV antenna towers. This would help to show that they are in all sorts of neighborhoods.

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Be prepared to show that certain people have no sight line.

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Don’t screw around with the height. Tell them the height of the tower and the height to the top of the mast. Otherwise, it will come out painfully.

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Only photos of the woods in winter will ultimately satisfy questioners as to whether it will be a problem in winter.

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Always close with the bylaw test to be applied and exactly what you are asking for.

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In the closing, emphasize that, with time, the offensiveness evaporates.

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Offer to plant evergreens as appropriate to block view of base.

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Always volunteer the anticlimbing device, and bring a photo that will allow the board to believe it will be effective.

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Inviting supporters to attend has its pros and cons: ●

You don’t want to be seen as the guy who brought a riot to the meeting.

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You don’t want an invited “friend” to sing off key; i.e., to say something that contravenes the very carefully thought-out position that you’ve put together.

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Out-of-town observers (speakers are usually asked to say their names and addresses) are heavily discounted, unless such a person is an expert. Boards tend to look on this hearing as a town matter.

Thus, the following good ideas: ●

If employees come, ask that they leave the baseball hats at home. It is disrespectful to wear a hat indoors anyway. Other indicia attire may only look, to the untrained eye, like they are members of a motorcycle gang.

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Most employees will not help your legal arguments. Ask them to do their best to remain silent. On the other hand, do not underestimate the star power of on-air talent.

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Ask your friends to get there early and take seats. This forces the NIMBYs (a NIMBY is a person who is there to say: “Not in my back yard”) to stand, to tire, and to leave early.

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Employees who live in town are, however, usually useful, as they may actually know the bylaw, the Board members, and some history.

12.7 Continuances There are several reasons why a Board may decide to continue your hearing until the next session. This is called a continuance. There are some subtleties to consider: ●

The Board may want the continuance because you submitted a big pile of information at the last minute (within a few days of the hearing or that very evening). In this case it is perfectly reasonable for them to continue the hearing to absorb the material. You can sometimes avoid

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If you have retained a lawyer, the continuance will add to your expense. You are now asking your lawyer to show up twice. This is another reason to get your materials in early. Some states have a maximum number of days between the date of the original submission of the Building Permit application, or the date of the original appeal to the Board, and the date by which the Board must render a decision in writing, or else the appeal is granted. This creates an interesting dynamic. You may be asked to agree to the continuance. If you do, the number of days until the hearing continues will be tacked onto the current end date. The tension here is that, if you refuse to agree to a continuance, the Board can become irritated with you and not give you any breaks. If the continuance is due to your late submission of information or because you want to supplement the record, you should agree to it. If the continuance is because they are going to ask Town Counsel for ways to torpedo your application, you should not agree to it. In particular, if you hear the Board discussing the real meaning of some court case that came out badly for your side, and they appear to be looking for time to solicit advice from Town Counsel on how to use that case against you, do not agree to the continuance. It will just extend the time, cost you more money, and allow the Board to write a decision that denies your application even more elegantly! You are going to lose. Make them decide more quickly, as this increases the likelihood that they will write something in the opinion that will make it easy to appeal and win! If the continuance is to allow a site visit so they can resolve for themselves a fact situation, then you must stress that you are only agreeing to the continuance for the purpose of the site visit, but the public comment portion of the hearing should be closed. This can be good, if the facts are in your favor. A typical example: You say that your antennas will not be visible from the neighbor’s bedroom window because of the 200 feet of thick forest in between. The neighbor says that your antennas will dominate his view.1 By all means, agree to a continuance for the purpose of a site visit. Let the Board see that the neighbor is a liar. You could also agree to a continuance solely for the purpose of submitting additional written materials. If possible, try to avoid a continuance of the public portion. This gives your neighbors a chance to organize and develop a real head of steam—by getting petitions, dragooning neighbors to appear and testify against you, and so forth. Since you don’t want an angry mob of neighbors appearing the next time, if they weren’t there the first time, do your best to avoid a continuation of the public portion of the hearing. Here are some arguments you may use: 1. You’ve assembled a team of experts to appear on your behalf, the meeting had fully published notice, and it is simply not fair for you to be forced to bring your witnesses back

1

I once attended a site view where the neighbor claimed that the proposed tower would wreck his view. On site, the Board realized that his great view was East, while the tower was going to be Southwest. No matter how much he pointed in the direction of the tower and complained, those present on site saw that the porch and all of the picture windows were aimed East!

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again. This is especially true because your lawyer, engineer, professor, whatever, came in from out of town and cannot be there to rebut testimony the next time due to the distance or a scheduling conflict, or both. Even hostile Boards want a fair hearing, since it makes it harder to overturn their decision against you. 2. Everything they need has already been submitted. There is no need for a further public hearing. 3. It is unfair to make you pay your lawyer for an additional hearing. Can’t any additional information required be obtained by a site visit or submitted in writing?

12.7.1 The Viewing The Board may decide that, before making a decision, it wishes to visit the site and see for itself how tall the trees may be, how good or bad the view may be, etc. There are several things about the “Viewing” or the “Site Visit” that you should know. 12.7.1.1 Opportunity for Argument When the Board shows up on your property, you may think that you will have that extra moment to show just what a brilliant orator you are, holding forth with a captive audience while waving your hands. Dream on. First, the visit is likely to last only a few minutes. Unless your Board is different from most, they will not be there long enough to have a cup of coffee. Furthermore, they don’t want your cup of coffee—for reasons of the appearance of impropriety, delay, or whatever. Second, this is likely not part of the public hearing, so they shouldn’t want to hear any argument. The most you can do is point and say: “This is north.” “Mr. Jones lives there.” “The property line is marked by that pin with the blue cap.” “The piece of wood stuck in the ground with the top painted orange is the proposed site.” And so forth. Furthermore, if you start to engage in oral argument on the spot, and an opposing neighbor is present (as the opposing neighbor has every right to be under your state’s “government in the sunshine” act, even though he would otherwise be trespassing on your land), you’ve really opened up the chance for the neighbors to start arguing all over again. This will remind the Board just how much your project is opposed. Arguing at the viewing is rarely in your best interest. What do you do if an opponent starts arguing first? First, point out that this is not part of the public hearing and that the Board should not be hearing argument. This accomplishes the point of making it plain that you are law abiding and the opponent is not. Second, ask the Board members present if you should respond. From there, if you are asked to respond, or you just can’t help yourself, speak briefly. This is a viewing, these are daylight hours, and the Board is composed of volunteers who would rather be at home mowing the lawn or watching a football game. Or, it might be a weekday, and they need to scamper off to work. In any event, they want to get out of there. Here are some tips on preparing for the viewing: ●

Get rid of “slash.” You may have cut some trees or branches recently, to prepare for the construction. No matter how all those dead branches came to be on the property, get rid

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Clean up the yard so that no one could get hurt. You are arguing that you will construct the project safely. Why would you want to leave out ladders, shovels, or other tools that someone could trip over? Cover any holes. You wouldn’t leave an open hole into which someone could fall, would you? Take the trash to the dump before they arrive. Some people equate neat construction with safe construction. While the essential truth of this equation may be tested, there is simply no need for it to become an issue. Plant flags or wooden sticks (a pointy 1 ⫻ 3-inch pine stick often used by builders to show boundaries or mark a driveway is a useful tool) to show where the support structure will go, where the guy wires will go, and if not otherwise marked, to show where boundaries are located. This will allow you to just say: “The orange-painted 1 ⫻ 3 is where the structure will go. The unpainted 1 ⫻ 3 is where the guy wires will go.” Thus, you can do less talking, which is generally good, especially if a neighbor is blathering on and repeating himself or herself.

12.8 Submitting a Proposed Decision and Order It is hard to understand why, in cases such as this, Boards do not simply ask the applicant, who is going to be granted a permit anyway, to submit a proposed decision and order. But they don’t. However, if the Board has decided in your favor and is fumbling with the question of who is going to write the opinion and order, you should volunteer to submit a proposed decision and order. Here’s a sample based on a real decision, with only the names changed. It is included on the CD as filename Proposed Decision & Order.doc. Find a recent decision by the same Board and submit your own sample decision. The Board may have no interest whatsoever in looking at your proposed decision. But, if you have written the proposed decision straight and not slanted any wording in your favor, using only the language of the ordinance, such as you will find below (“will not pose a detriment to the public good”), there is a chance that the Board may find it helpful. Submitting a draft decision is used in court matters all the time, but Boards may not be used to it. The worst thing that can happen is that you’ve spent time drafting and the Board ignores it. Nonetheless, the exercise of drafting it will tell you what you need to concentrate on as you make your presentation.

Decision of the Board of Appeals on the Appeal and Petition of Channel 666 Television, Inc., 666 Friendlyville Road, Unfriendly, MA Pursuant to public notice in the _________ [name of newspaper], a newspaper of general circulation in the Town of Unfriendly, published on [Month] 19 & 26, 200_, and pursuant to notice sent by mail, postage prepaid, to all interested parties in accordance with the provisions of State General Laws, a Public Hearing was held on the petition of Channel 666 Television, Inc., filed on [Month and Day], 200_. The public hearing was held Thursday, November 16, 200_, at 6:30 p.m., and continued through December 14, 200_, at Unfriendly Town Hall, 9 East

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Main Street, Unfriendly, MA. Voting members of the Board, Jean Pierre Inconnu, Chairman; Anne Judith; and Steven Paul were present for both sessions. The petition requested a special permit seeking relief from the Unfriendly Zoning Ordinance, Article XX, Section 17, Antenna Height Limits, for property located at 666 Friendlyville Road, Unfriendly, MA, Assessors Map 88, Lot 73. The petitioner has requested a special permit to install a 35⬘ digital (DTV) antenna and associated site work on an existing tower. The proposed tower is a structure over 35 feet in height and would require a special permit in accordance with the Town of Unfriendly Zoning Ordinance, Article XX, Section 17, which limits antenna heights to 35 feet. It was the finding of the Board of Appeals that: The installation of a 45⬘ digital (DTV) antenna and associated site work on an existing tower will not pose a detriment to the public good, and the Board voted to issue a special permit for the following work: 1) Add 45⬘ digital (DTV) antenna (at elevation 525⬘–570⬘), 2) Replace one level of 1-3/13⬘⬘ guy wires with 1-5/16⬘⬘ cable, 3) Replace existing 3/4⬘⬘ diameter solid rod diagonals with 7/8⬘⬘ rods from elevation 510⬘ to 570⬘, 4) Add 2⬘⬘ ⫻ 2⬘⬘ mid-braces from 320⬘ to 460⬘ and 510⬘ to 570⬘, and 5) Add 3⬘ electronic news gathering (ENG) dish antenna (elevation 627⬘). This special permit shall be issued for a period of five (5) years from the date of this decision. It shall be renewed automatically for successive five-year periods provided that a written request for renewal is made to the Zoning Board of Appeals not less than three (3) months prior to the expiration of the then-existing five-year period. Publication of notice of said request shall be made in the same manner as would be required for an original application for a special permit. Said notice shall state that the renewal request will be granted automatically unless, prior to the expiration of the then-existing permit, a written objection to the renewal, stating reasons, is received by the Board. In the event that a written objection is received, a hearing on the permit renewal shall be held and shall proceed in a manner identical to the course of proceedings in connection with an original permit application. A vote was taken. The Board voted to grant the petition unanimously. Any person aggrieved by a decision of the Board of Appeals has the right to appeal such decision to a Court of competent jurisdiction pursuant to Massachusetts General Laws, Chapter 40A, Section 17, by filing such appeal within twenty (20) days after the date on which the decision was filed with the Town Clerk. The structure must be sited and constructed in substantial conformance with the plans and specifications submitted with the application and shall otherwise comply with the letter and spirit of Section _____. Member 4 was not present at the deliberation meeting, so did not vote. Jean Pierre Inconnu, Chairman Anne Judith, Clerk Steven Paul, Member Name 4, Member Dated: ____Month_______, 200_

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12.9 The Press 12.9.1 The Interview At some point a reporter may approach you. Prepare for it now by asking yourself the questions that a reporter will ask you: Who? What? Where? When? Why? Figure out the answers you want to give and stick to them. But first, a story: One cold morning, two boys were playing hockey at the Frog Pond on Boston Common, when all of a sudden a pit bull appeared out of nowhere and attacked one of the boys. The second boy, thinking quickly, stuck his hockey stick under the dog’s collar and twisted it, breaking the dog’s neck and killing it. A reporter who happened to be walking by saw this event and hurried over to get the story. “Young Bruins fan saves friend from vicious dog!” he began writing in his notebook. “But I’m not a Bruins fan,” protested the boy. “Oh, I’m sorry,” replied the reporter, scratching out his initial headline. “Brave Red Sox fan heroically rescues friend from horrific attack!” the reporter wrote anew. “But I’m not a Red Sox fan either,” the boy protested again. “My mistake,” said the reporter, “I just assumed that here in Boston everyone was either a Bruins or Red Sox fan. Never mind, though. What team do you like?” “I’m a Yankees fan,” the boy said proudly. The reporter disgustedly turned the page in his notebook and wrote furiously, “Little bastard from New York kills beloved family pet.”

Now what is the point of this story, besides a gratuitous slap at the fourth estate? It is that there is a strong likelihood that you are from out of town (moving in and seeking to erect an antenna system) and that you are a minority (homeowners are plentiful, tower owners are rare). You cannot rely on a reporter to put your best face forward. A local weekly newspaper is usually the place where young, inexperienced reporters get a start. In addition, always remember that they became reporters because they were good with words, not numbers or science. Keep that in mind. Now, on to the usual questions.

12.9.2 Who? Decide how you would like to be called in the article. The reporter is likely to ask you how to spell your name. If you spell L-A-W-R-E-N-C-E, you will be called Lawrence in the article. It will also avoid an entire article in which you are called Laurence. If you spell L-A-R-R-Y, you will be called Larry in the article. Don’t insist on getting your station call sign or an operating frequency into the article, because the reporter will only think you are more of a geek than he already believes you are. But, if you can offer a well-known brand (CBS or AT&T, for example), try to work it in. It can be comforting, and suggests that things will be done right.

12.9.3 What? The building code calls it an “antenna-support structure.” Call it a structure for short. If you can avoid it, don’t call it a “tower” (unless it is over 200 feet tall, in which case trying to avoid the word “tower” is a fruitless exercise). The reporter will probably use both, just to vary the text. Call what’s on top an

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“antenna,” not a “multibay array.” Do not use the phrase “beam.” Beam conjures up the idea of being zapped or transported, as in “Beam me up, Scotty.” Not a good phrase.

12.9.4 Where? If it is the truth, keep talking about the location as “in the woods,” “in the industrial zone,” or “next to the cement plant.”

12.9.5 When? If you are an experienced engineer, with experience that might be known to readers (experience that does not have negative connotations), use that to convey that this is not a novel experiment and that you know what you are doing.

12.9.6 Why? Emphasize public service and public safety, or an attempt to conquer the “digital divide” by spreading wireless Internet. Sorry, my reporter friends, but that’s mostly what the public will understand. One more cell site or another hip-hop station won’t really help with the zoning folks. Try to figure out a reason that the public should care. Finally, remember that reporters have deadlines. Delay, and the story will feature your opponents, if you have them, without your side. “The applicant could not be reached” does not help your cause.

12.9.7 On the Record or Off ? If you’re going to speak to the press, I cannot recommend highly enough an article called “Hard Pressed” by David Reich from the Fall 2001 issue of BC Law, the alumni magazine of Boston College Law School. It’s on the CD as filename HardPressed.pdf. One section of this article in particular bears reprinting here, as it can save you a lot of grief and potential embarrassment or trouble if you’re unfamiliar with what exactly the terms “on the record” and “off the record” mean, as well as the useful phrases “on background” and “on deep background”: The terms on and off the record, on background, and on deep background can mean different things to different reporters, so while the definitions given here are generally accepted, it makes sense to spell out exactly what you and the reporter are agreeing to before you start an interview. Unless a reporter says otherwise, all conversations between you and the reporter are considered on the record. This means anything you say can be quoted verbatim, paraphrased, or summarized. It can also be attributed to you by name, with your job title, or other identification. If a reporter agrees to speak with you off the record, nothing you say can be used in any form. If a reporter agrees to speak with you on background, anything you say can be quoted verbatim, paraphrased, or summarized, but the reporter may not identify you as the source except in a generic way—e.g., as “a Manhattan civil rights lawyer.” If a reporter agrees to speak with you on deep background, your words can be paraphrased or summarized but not quoted. Also, conversations on deep background must be reported without attribution of any kind.

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12.9.8 The Photos If your case has stirred up a local storm, the paper will want a photo of an existing structure. We are now on dangerous ground, for technical reasons. There is a chance that your own 4 ⫻ 6-inch color photos of your former structure (if you had one erected at your former site) will be rejected because they don’t scan well. This excuse is, however, also a reason to reject your photos because they “don’t tell an interesting story.” Closer to the truth is that the paper employs photographers, and your own photos were “not invented here.” Nonetheless, it is in your best interest to suggest where to find a comparable antenna-support structure in your area, rather than letting the paper’s photographer loose. If that happens, the paper may run a photo accompanying your story of the local 1,400-foot broadcast tower, 8-feet wide all the way up and visible for miles. The caption could read: “The WBZ-TV tower, similar to the one LocalTel seeks to erect behind the truck stop.” You don’t want that. Not only that, but the photo will be taken “vertically” (in portrait mode). Any photo you provide should always be in landscape mode and from a distance. That’s a fairer representation. So, if you are going to erect a standard U.S. Tower, Pirod, Sabre, Rohn SSV, or Rohn 55G structure (any standard structure), tell the newspaper where to find a similar antenna system—in the woods, if possible—and give them an exact address and directions. If you have applied for a second or subsequent structure on your property, point out that the controversy is not how it looks from your backyard but how it looks from the home of a particular complaining neighbor. Send the photographer to that neighbor. The farther away the photo is taken, the better off you are, due to the granularity of reproduction of a halftone. (This means that the farther away the photographer gets from those thin tower legs, the more they will look like a pencil line in the photo.) Whatever you do, do not agree to pose in front of an existing structure. When the photo of you in the foreground is taken, the camera will be almost on the ground. You will look like the Jolly Green Giant, and the structure will loom large with a bad view. This is a view not available to members of the public and is not the view about which anyone will complain. That’s totally unfair. Don’t let them do it to you! One way to avoid such a photo is to say that you will not pose in front of your existing structure or outdoors at all. That’s your privilege.

12.9.9 The Letter to the Editor Okay, the first hearing is over, the article has come out, and the editorial has railed against you. What do you do? The temptation is to write a letter to the editor in which you tell the editor that the reporter: ●

Is a poor excuse for a human being

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Promised to tell your side of the story with compassion

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Misrepresented something you said

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Got your call sign (or frequency or power output) wrong

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And so forth

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Resist that temptation. If the article was small and had no photo and only a few neighbors are raging against you, leave it alone. The result of your letter may be a follow-up article and a photo, because now the newspaper has a genuine controversy and a guarantee that even more people will come out to the second hearing. You don’t want that. If it is a small fire, keep it a small fire. Furthermore, you will find that some neighbors just wanted to vent against you. Perhaps your kid bit their dog, or they once had TV interference from a CBer at a former home. It doesn’t matter. Once having had the chance to vent their feelings, Mr. and Mrs. Neighbor will go home and not return to a second hearing—because they’ve had their say. You may also be able to placate them between a first and a second hearing. What you don’t want to do is to cause your application to become a cause célèbre. If you absolutely must write a letter to the editor, do not tell him that: ●

This is newsworthy (this brings out the photographer).

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His reporter is a lying dog (this brings out staff loyalty).

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The editor is trying to rule the world from the editorial page (of course he is).

Why? For the reason in an expression oft-attributed to Mark Twain: “Never argue with someone who buys ink by the barrel and paper by the ton.” So what do you do? Make one or two, not more, affirmative points that are part of the story you are trying to sell. For example: ●

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“For those who wonder what such an antenna system will look like, there is an existing one on Old County Road, two blocks west of Main. Though your readers may have never noticed it, it has been there for 20 years.” “Concerning claims that such a system will lower property values, I suggest that they drive by Old County Road, two blocks west of Main. Every home in the neighborhood sells for more than $750,000, so it will probably come as a surprise to people that their homes have been negatively impacted in price.” “While the claim has been made that we’re just another broadcaster [that you can get cell service from another company], I call your attention to [name a recent public-relations triumph], where the storm took out power [or we exposed a local scam or explained a local ballot initiative], and the Governor of that state cited us for their excellent work supporting disaster-relief teams [or informing the electorate].”

The best ways to get a story printed are to keep it short, to add something to the discussion, and not to attack any person. A long letter will be edited for length anyway. So, before you send any protest off to an editor, ask your spouse and a friend to review the letter. Make them move quickly, however, because if you are dealing with a weekly local paper it is easy to miss the deadline and become “old news.”

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An example of an appropriate response would be:

Hi, Andy: Thank you for taking the time to interview me for the story; much appreciated. I think your story was fair and largely accurate, but I would disagree with your opening sentence (of course, that’s water over the dam, under the bridge, or wherever water goes). It says: “A radio tower in Charlotte might have negative effects on neighbors’ health, but the scientific evidence isn’t strong enough.” In its recommendation to the Zoning Board, the Board of Health clearly stated, “In short, there is NO [emphasis added] persuasive evidence that RFR can cause cancer or any other adverse nonthermal health effect.” Later, the report added, “The Project complies with FCC guidelines which protect against thermal health effects of RFR with a wide margin of safety.” And the E-Board concluded, in part, “At this time there is no persuasive and comprehensive evidence that RFR causes any nonthermal health effect,” and lastly that the station “has proved by a preponderance of the evidence that RFR from the Project will cause no adverse health effects.” This last sentence is important, and I hope that you will use it in any follow-up stories on the tower. Our opponents, some of whom no longer live near this tower, have long argued that the tower is dangerous to the health of those in its immediate neighborhood. But, after the evidence was in, the Board of Health concluded that the tower “will cause no adverse health effects” not, as you suggest, that it “might have negative effects on neighbors’ health.” That is a most critical distinction. Thanks again. Jim Broad Caster, Inc.

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Deliberations and Decisions

13.1 Immediately Afterward Whew, the public hearing is over. The Chairman has said thank you to all parties, and the next agenda item is now under consideration. The tradition is that you gather somewhere—down the hall or out in the parking lot—out of earshot of the other side. You may want to call someone a liar or describe someone else as playing fast and loose with the facts. It’s natural. You want to replay the ballgame. WAIT! If the panel hears all items and then votes at the end of the evening, you’ll want to be there when the discussion occurs and the vote is taken, or else your lawyer should be there. If someone makes an obvious mistake with a name or address or other plain fact, don’t interrupt, but walk calmly over to the Secretary and quietly tell her the correct name, correct spelling, etc. The time for public comment is over, but as a practical matter, you can still answer a question if someone wants to ask one. If anything else affecting your application is going to happen that evening, you should be there when it happens. On the other hand, if nothing more is going to happen that evening with respect to your decision, you and your team can leave the room to discuss how it went. (How do you know nothing more will happen? You’ve sat through a prior meeting and seen how this Board does things, and, in addition, you’ve asked the Chairman before you left the room.) Even if that’s the case, don’t replay the hearing within earshot of anyone else! No good can come of that. First and foremost, if you’re in the hall and making noise that drifts back into the hearing room as they move on to other issues, members of the panel be irritated with you for being rude. It is not good to irritate the panel. Second, the local newspaper reporter could report what you say. You could give away an essential fact that is against your interest to disclose. You could threaten someone. (Don’t do that!) Another possibility is that the reporter from the local newspaper, who covers week after week of dull meetings, is all excited and rushes over to you to ask some questions. If you have a lawyer, let your lawyer answer the questions. If you don’t have a lawyer, be pleasant and do not say anything that you did not say during the hearing. A real danger is that you could say something that could wind up in the paper before the Board has met to vote on its decision.

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By the way, forget about telling the reporter something “on background” or “on deep background.” You have no relationship built up with that reporter and little likelihood of a post-encounter relationship. You have no way to control the reporter, no way to punish bad behavior. If the reporter reveals something in print that you didn’t want revealed, unlike a lawyer, doctor, or priest, he or she has no license to take away. For further tips on speaking with the press, see Chapter 12. Away from the reporter, and back at your group meeting, remember that your lawyer charges by the hour. He’s human and is only too happy to replay the game, too, but you aren’t going to get much benefit from his thinking after the first 20 minutes or so. However, there is one exception. Let’s say you have gathered a team—an engineer, surveyor, a close friend or colleague who has been useful, and the lawyer. Let’s say that you need to map another strategy, perhaps to reapply for a different site on your property or perhaps to strategize your appeal. It will be hard and expensive to get them together again. If you need to talk, leave Town Hall immediately and go to some place where you can have coffee and take notes. The next day, people are going to ask how it went. People who were there may ask what you are going to do next. It is really easy to say something inappropriate responding to these questions, so be careful.

13.2 If You Won If you won, don’t gloat. Don’t tell the newspaper reporter that the folks on the other side were a bunch of idiots or that they lied or misrepresented things. It is never a good idea to anger an enemy. Be gracious. If you don’t know how, here is a sample sound bite: “I’m pleased that the Board supported the application. I understand that in an adversary situation they have to make tough decisions. Now, we just want to put up the antennas and do what we are supposed to do under our FCC license.” Don’t say anything that will cause the Board to rewrite the favorable decision that is coming. Here is an example of something stupid that you could do. “Now that we’ve got the permit, I’m going to cut down all the trees on the street side of the property and pave it over.” If you say such a thing and the Board hears about it, they may decide to add a condition requiring you to come back to them every time you need to cut so much as a blade of grass. Of course, the remark and the response are exaggerations, but you get the idea. Another thing: Please don’t walk out of the hearing saying, “Boy, we really pulled the wool over the eyes of those dummies.” Do I have to explain why? Well, I will explain. Remember: “It ain’t over until it’s over.” The actual decision isn’t written yet. That will be done by one member, or perhaps by the Secretary to the Board. The Board must still reconvene to sign the decision. Many Boards vote, then assign the drafting of the decision to a member, and then must sign the decision at their next meeting. Some Boards just ask members to drop by Town Hall to sign. Some Boards have a signing session on a Saturday morning, when they do nothing but sign things. Every Board has its own practices. But, when you are thinking about a timeline, it is very common to have one or more evenings for the hearing, a continuation after the close of the public hearing so that additional material may be presented in writing, and another evening after the vote for the signing of the

Deliberations and Decisions 289 decision. In some jurisdictions the Board may have 30, 65, or even 90 days to issue a decision. They’ll have a lot of time to figure out a way to pay you back for any belittling remark that filters back to them.

13.3 If You Lost Don’t insult the Board and don’t insult your opponents. Don’t insult the Board because it is likely that you are going to be back in front of them again someday. You may have to come up with a different plan and then go back to them. When you do, you’d like to be treated courteously and you’d like to be successful. Or you may appeal. If you win that appeal you may get a “remand” order that sends you back to the Board with instructions for them to reconsider in light of the new court decision. Should that happen, you could wind up again in front of the same people you insulted six months earlier. Remember, these people are volunteers. They are not paid to take insults. They don’t work in the NBA, where referees are paid to listen to hoots, whistles, and catcalls. Unlike the referee, who can’t take it out on the man in the crowd who is booing him, the Board can and will find a way to vent their anger on an arrogant and ungrateful applicant. So be nice. Be respectful, just like your mother taught you to be. Also, be kind to your neighbors. After all, you still have to live with them. If you must return to the Board with another plan or appeal, you don’t want your neighbors to be so angry from the last time that they really do a lot of homework, hire a lawyer, and try to crush you in the next public hearing. In victory or defeat, it always pays to be nice to your opponents. Remember that. As President Lyndon Johnson used to say: “Keep your friends close and your enemies closer.”

13.4 Modifying the Decision Occasionally, you will run into a Board that publishes draft decisions. This is really good government, because it is always possible for a volunteer decision writer to bungle something—whether it be a typo, a term of art, or a confusion. For example, let’s say you’ve applied for a Special Permit to put an array of cellular panel antennas on an existing broadcast tower, and the decision refers to the panels as broadcast antennas. The first thing you will want to do is get that mistake corrected, but your lawyer is going to ask: “Does it make a difference? Isn’t an antenna an antenna?” Your answer is: “Yes, it makes a difference.” Someday you’ll want to swap out those panel antennas for dual-band antennas or the latest and greatest phased array. You’ll show up and a member of the panel who wasn’t there the first time around will say: “Hey, wait a minute. The use authorized is a broadcast antenna—it says so right here in the decision. Now you are asking for a cellular telephone use. We now have a different ordinance for those. You’ll have to start fresh.” I’m not making this up. I lived through something almost identical. As a result of the typo or mistake, you’ll want a corrected decision. The best thing to do is to get in touch with the decision writer immediately and point out the problem. Maybe it can be taken care of before the official vote to approve the decision or before the signing of the decision.

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If the draft opinion was not distributed to the parties for corrections (and, it must be repeated, circulating a draft opinion is a rare but really good government thing to do), be sure to attend the signing session. Ask the Secretary if you can see a copy before the vote to check for typos. Many will say yes. If the opinion (the decision) is written and signed without your input and contains an error, write a formal letter asking for a correction. In the letter requesting a formal correction, suggest correct language, including the full sentence as it should appear. Sometimes a Board will “republish” a corrected version or “publish” a corrected version. It doesn’t hurt to ask, but be sure to include the wording exactly as you would like it. Don’t try to change the meaning or direction of the opinion, just go for the words—the terms of art—that make a difference. One word of caution: If you lost, and the opinion says something stupid or wrong, consider carefully before you ask for corrections. If you must appeal to a court, the matter will wind up in front of a judge, to whom words make a difference. If you keep quiet at the Board level, and the decision retains something really stupid or wrong, you’ll be able to argue to the judge that the Board clearly did not understand what was going on, and the language of the opinion proves it. You can then ask the judge for a remand order that straightens things out, or you can ask the judge (as lawyers say) “to put a gloss on the wording.” What the judge then does is to write an opinion that says something like this: “The decision of the Board is inartfully phrased. Though the opinion says that the total height authorized is 780 feet, the panel understood that the broadcast antenna would extend 50 feet above that. As a result, the height of both the tower and the antennas is authorized to a height of 830 feet.”

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Appeals

14.1 Process: Can You Spell REMAND? In the event that your permit is denied, the good news is that you can appeal the decision. The bad news is that a successful appeal normally results in a remand (a return) to the original forum (the Board of Appeals, for example) with instructions to that (normally hostile) Board to reconsider the matter in light of the Court’s further instructions. It is a rare event for a court to grant the permit itself. For the Court to grant the permit itself, you would generally have to show that a remand to the original panel would be a fruitless act, because of the demonstrated hostility of that Board to the applicant or to the application itself. While the Board’s hostility might be obvious to you, proving it to a court is a far more difficult proposition. To give you an idea of just how hard it can be to convince a court to skip over the remand step, MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512 (1976) (though not an antenna case) covered 13 years and three denials on legally untenable grounds before the Court issued the permit itself. A direct issuance may be easier in your state, or in federal court, but it is usually difficult. On the other hand, so many cities and towns are so hostile to antennas that something of a special body of law has developed on the question of remedy. This will be discussed later in this chapter. It is now common for a court to order a remand with 30 to 60 days to issue the permit, conditioned only on such things as fencing, painting, access, and so forth.

14.2 Appeals of a GRANTED Permit You may be tempted to appeal the grant of a permit that contains conditions you don’t like. Before you consider this course of action, remember that a really hostile Board could succeed in getting new information introduced by an opponent the second time around, leaving you worse off, or no better off, than you were when you started, having suffered considerable delay and legal expenses. Try to see if you can live with the permit originally granted. If you really feel that you cannot, ask yourself if you could live with the permit as granted for a year or two. After the controversy has died down and neighbors have discovered that the sky has not fallen, a modification totally unacceptable to the Board today may be possible in a year or two. It may be hard to accept, but if you will spend less than $5,000 to $7,000 fulfilling some outrageous condition, you are better off just living with it. Here’s my favorite example: After winning its case 291

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before the Supreme Court of New Hampshire, requiring that the city allow a 266-foot-tall tower, the matter was remanded to the Zoning Board. This time, Koor Communications’ Tower Permit was granted, but Koor was required to put up a sign every 100 feet around the perimeter of a “fall zone” with a radius equal to the height of the tower. The site is several hundred acres in size—so large that people go hunting in the woods surrounding the tower. Most signs are in the middle of the woods, serving, presumably, to warn deer, turkeys, and rabbits (the most frequent inhabitants of the woods) that the tower might fall. At a cost of $15 each, the signs were cheaper than the appeal. Think this is a joke? Figure 14.1 shows the site.

Figure 14.1 A “fall zone” warning sign in the middle of the woods, presumably to warn deer, turkeys, and rabbits that the tower might fall. Photograph courtesy of Bob Vinikoor, President, Koor Communications, Inc. Printed by permission.

14.3 Appealing a DENIED Permit On the other hand, if your permit has been denied and you cannot live with the result, you really must consider an appeal. This gets tricky, as you must now select the forum to which you will appeal. For example, according to your own local situation, you may be able to appeal to another level of land use authority (perhaps at the county or regional level), a land court, a state superior court, or a federal district court. Selecting the appropriate venue really requires the advice of a local lawyer and an analysis of your facts. No matter what, it almost always pays to include a count of federal preemption—if you have such a claim.

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Can you handle the appeal yourself? Most lawyers would advise against it. In a commercial situation, it would be foolish. As it is really not advisable, this book does not provide a generic form of complaint. Nonetheless, your job will be to supply some exhibits to help your lawyer: a timeline, the application, the decision of the Board, the relevant bylaw for antenna-support structures, the relevant bylaw for Special Permits (or whatever you applied for), and so forth.

14.4 The Remedy With a well-considered decision, where the facts were against it, the Town of Lincoln, MA, decided not to appeal a U.S. District Court opinion, Omnipoint v. Town of Lincoln, Mass., 107 F. Supp. 2d 108 (D. Mass. 2000), where the Court included these two paragraphs: This case dramatizes the perpetual clash between national and local interests and between material progress and natural beauty. In the Nineteenth Century railroad tracks were layed by Walden Pond; in the Twentieth Century telephone poles were the trees that grew on urban streets; in the Twenty-First Century wireless towers will become familiar landmarks across the suburban landscape. A universal technological advance cannot be permanently stayed by a local stratagem devised to preserve the character and beauty of a locality. The enduring principle of local control of land use shall be honored, but only if a federal law which promotes the establishment of a comprehensive nationwide wireless communication network is not thereby subverted. For good or for ill, Hamilton’s, not Jefferson’s, vision for America has prevailed. … The Court orders that the Board of Appeals’ April 20, 1999, decision is null and void. The Court orders that, within thirty (30) days from the issuance of this Order, the Defendant Town of Lincoln, its officers, boards, commissions, departments and instrumentalities, including the Lincoln Board of Appeals and Planning Board, take all steps necessary, including, but not limited to, the issuance of special permits and/or variances, as well as the issuance of building permits, to permit Omnipoint to erect a WCF, as described in Omnipoint’s application to the Defendant Board of Appeals, upon the parcel herein referred to as Tracey’s Towing which is located within the Town of Lincoln at the intersection of Route 2 and Bedford Road. If the Town fails to take such action within the prescribed time, then the Court shall issue an order granting Omnipoint the authority to erect said WCF at Tracey’s Towing.

In National Tower v. Plainville Zoning Bd. of Appeals, 297 F.3d 14 (1st Cir. 2002), the Court wrote: “The federal courts now routinely hear cases brought under the Telecommunications Act of 1996 by those who wish to construct cellular antenna towers and have been denied permission to do so by local town officials.” As a result, a body of law has been created on what to do with recalcitrant cities and towns. Here’s how the Appeals Court resolved this particular case: Since the board’s order cannot be upheld on the grounds it stated, the question becomes one of what should be the appropriate remedy: remand to the board, or affirmance of the injunction. While we can conceive of circumstances in which a remand may be in order—for example, an

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instance of good faith confusion by a board that has acted quite promptly—this case is not a candidate for remand to the board. Like the district court, we think the only fair inference from the board’s words and actions in this case is that whether or not there is a coverage gap, and whether or not there are alternative sites that could fill that coverage gap, the board is not prepared to permit construction on Omnipoint’s chosen site. As a result, any further reasonable efforts by Omnipoint are so likely to be fruitless that it is a waste of time even to try. Thus, the record compels the conclusion that the board has effectively prohibited the provision of wireless services in violation of the Act.(6 [fn6 omitted]) That justifies the remedial order entered by the district court.(7)

Fortunately, the Appeals Court told us what was said in the remedial order (i.e., it provided footnote 7):

7. The district court ordered the board “to issue within thirty (30) days of this Order the dimensional and use variances and special permit necessary for the construction of plaintiffs’ 170 foot lattice tower and maintenance facility on the locus at 75 Washington Street in Plainville.” Nat’l Tower, 164 F. Supp. 2d at 190. It added that “[t]he Board may condition the issuance of the variances and permit on plaintiffs’ compliance with such reasonable environmental conditions as are necessary to insure the protection of the Town’s watershed during the construction and operation of the tower.” As you can see, the courts can be tough on municipalities that demonstrate real hostility to a communications tower for cellular purposes. Some of that language should be borrowed in urging a court to help your cause, too.

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Lawsuits

This is going to be a short chapter, because the questions and answers are really an entire civics course— or a brief orientation. We’ll stick to the brief orientation.

15.1 Can I Be Sued? Of course! You can be sued every step of the way and for the silliest of reasons. The more detailed questions are “Is anyone likely to sue me?” and “Is anyone likely to win?” It generally costs money to sue someone else. When an abutter takes her complaint to a lawyer, her lawyer will discuss the likelihood of success and the cost. If you’ve followed the law and obtained the correct permits, most of the time your neighbor will stop right there. However, you can never tell. My all-time favorite true story comes from my own ham radio antenna Special Permit, right here in the little town of Lincoln, MA. Since it is instructive, I’ll tell the story here. If you want to, you can find the case under Anderson v. Barker, Middlesex Superior Court Civil Action No. 81-2494 (Massachusetts, 1981). As a local district court case, you cannot find it on the Internet or in any publication. You’ll have to go to the courthouse to see the original decision. Here’s the story. After I bought my house, I sought a Special Permit under the local bylaw to erect and maintain an amateur radio antenna-support structure. The permit was granted to erect an antenna system totaling 100 feet in height. Within the appeal period (20 days), my neighbors to the east (the Andersons, now deceased) sued the Board of Appeals (Barbara Barker was the first name on the list of Board members) to annul the grant of the permit. I was later named as a party defendant. Here’s the critical wording from the complaint, reprinted as written, for it is worthy of examination: One should not under estimate [sic] the force of Mother Nature and should not rule out the possibility that either the tower could fall or the 26 ft antenna on top of it could fall, depending upon the prevailing wind, on the abutters’ properties.

Of course, a lawyer did not draft this. Mr. Anderson drafted it himself. As I understand it, he subsequently tried to hire a lawyer to prosecute the complaint but could not find one who would sign a pleading. Eventually, he did find an attorney who helped draft the wording of documents filed in Court, but even that attorney would not sign any of the documents. Readers should understand that when a lawyer signs pleadings in a lawsuit the lawyer takes on the responsibility of seeing to it that a claim 295

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is legitimate (i.e., it is not a vexatious claim) and that there is no fraud on the court. In addition, by signing it the attorney affirms that the pleading is not interposed for the purpose of delay. In any event, I responded with interrogatories (a series of questions in writing to which a party must reply in good faith, after reasonable inquiry) and requests for admission of facts. These are standard procedures in litigation aimed at narrowing the issues—by requiring the parties to agree on certain basic facts such as names, addresses, ages, and so forth. As soon as it became possible, I requested a pre-trial conference,1 which was scheduled in due course. At the appointed date and time, I was asked to come into the Judge’s chambers, accompanied by the neighbors’ lawyer. He entered an appearance for the limited purpose of representing them in the pre-trial conference. Since his clients were the plaintiffs, the judge asked him the usual judge’s question: “What’s this all about?” My neighbors’ lawyer replied that his clients thought that what I intended to do was dangerous and that they should have their day in court to make the complaint. Then the judge turned to me. Here’s the approach I took: Your Honor, as you can see from the complaint itself, the heart of the complaint is that one should not underestimate the force of Mother Nature. However, the good mother is unavailable for testimony, and safety is always a responsibility of the Building Inspector—who acts on her behalf. In response to my interrogatories, the plaintiffs basically replied that there was no height or site at which I could erect an antenna system on my property that would, in their opinion, be safe. While they clearly have issues, none of them is genuine. You can’t call Mother Nature as a witness.

Returning to the lawyer for my neighbors, the judge calmly asked for a reply. He stated that his clients would be affected by the antenna system and should have their day in court. The judge then returned to me and I said, “Your Honor, I’ve prepared a Motion for Summary Judgment for you. Here it is.” I then handed the following to opposing counsel (who had entered an appearance limited to this conference) and to the judge. COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss.

SUPERIOR COURT Civil Action No. 81-2494

RONALD F. ANDERSON et al., Plaintiffs

v.

) )

MOTION FOR

)

SUMMARY JUDGMENT

) )

BARBARA BARKER et al., Defendants 1

)

Judges like a pre-trial conference because it can “clean out the underbrush,” getting rid of certain claims. Judges can also apprise the lawyers, generally without the parties in the room, that one side or the other is entitled to a “day in court,” but that it will be an “uphill climb,” “a hard proposition to prove,” or some other warning phrase may be used. A warning from a judge in such a situation tends to hasten settlements. For the lawyers reading this, it was a Rule 16 pre-trial conference.

Lawsuits 297 1. Fred Hopengarten, Party Defendant, is the applicant for a permit to erect and maintain a mast and antenna structure for his hobby of Amateur Radio. He has applied under Lincoln Town By-law Section 6.2.f., which states that a permit for such a structure “shall not be denied unless the safety of the public will be endangered by such erection or maintenance.” 2. The Party Defendant, holder of the highest class of license issued by the FCC (the Amateur Extra Class), has introduced information to the record intending to show the safety of the proposed installation. 3. The Party Defendant has also produced information for the record by the manufacturer of the proposed mast, signed by a Registered Professional Engineer, and further information on various issues of safety to respond to questions raised by the Board of Appeals and at previous stages of this application, again signed by another Registered Professional Engineer. 4. Under the ordinance, the burden is upon a party opposing the grant of a permit to show danger. Yet, in almost one year’s time since the filing of the suit by Plaintiff, and in all of the time since the filing of the Party Defendant’s original petition on November 18, 1980, Plaintiffs have never done more than claim danger exists. No facts tending to show danger have been produced. Under Rule 56, there being no genuine issue as to any material fact, the Party Defendant now therefore moves this Court: To grant a motion for summary judgment for the defendants. (signature, address, telephone) March 16, 1982

Without going into the courtroom (you’ve often heard the phrase “in open court”), Judge William Garbose granted the motion right then and there, in his chambers. The neighbors’ lawyer sputtered a bit, but it was over. So what lessons can be learned from my story? ●

●

●

I originally filed for the permit on November 18, 1980, and the neighbors’ lawsuit was not dismissed until March 16, 1982, a period of almost 16 months. Litigation can take less time or more time. But anyone can be sued for even the flimsiest of reasons, and it can still take up a considerable amount of time before you may put up your antenna. It might go faster today, as some courts have gotten a little speedier. It might have taken longer had the neighbors been willing to spend more money on a lawyer to prosecute their case. There are some things even lawyers won’t do. My neighbors never got a lawyer to sign a pleading. There are judges who, when the proper paperwork is in front of them, will make decisions promptly.

In recent years, I have represented two hams who applied for Special Permits and were opposed at the public hearing by lawyers who were neighbors. In each case, the lawyers did not file suit after the Special Permit was granted. On the other hand, other neighbors did file suit. So there you have an interesting contrast: nonlawyer neighbors who did file suit and lawyer neighbors who did not. Such things are not predictable.

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Was it a question of money? There is a joke of long standing among lawyers, “Whenever you hear a client say ‘It’s not the money, it’s the principle,’ you can bet it’s the money.” In some respects, the opposite is also true. If there is no money at stake, even a lawyer who could do his own lawyering is unlikely to file suit where the likelihood of success is low. Most lawyers are averse to the idea of spending time on a fruitless endeavor, especially one for which they are not being paid. The flip side of all of this is also true. If you proceed to apply for a permit for an antenna system and somehow wind up in a lawsuit, remember this line uttered by Richard Gere, as Atty. Martin Vail in the 1996 movie Primal Fear: “The first thing I ask a new client is: ‘You been saving up for a rainy day?’ Guess what? It’s raining.” Walter Reuther, while president of the United Auto Workers, used to say: “If you can’t get up from the table, you have no right to sit down at the table.” In other words, if you aren’t prepared to strike, you have no right to threaten a strike. In our context, you must decide just how far you will carry a disappointment, should you lose along the way or be sued after winning. You don’t really have to make this decision before you start, but once a lawsuit pops up it is a question you must ask yourself at every step along the way.

15.2 Can the City Be Sued? Can a municipality or other governmental entity (Zoning Appeals Board, county commission, statewide siting board, etc.) be held liable in tort if an antenna system falls down and creates injury to property or persons? Fortunately, the answer is black letter law: No. The common law principle has always been one of “sovereign immunity,” based on the principle that “the king can do no wrong.” From that basis, American courts created the doctrine of “governmental immunity,” sometimes also called “municipal immunity.” State law may vary with respect to physical actions by a municipal employee or volunteer. But, where a Board or inspector is acting in good faith and performing a responsibility that is strictly governmental, such as issuing or denying permits, the municipality is immune from suit. (There is an exception when civil rights are involved, protected as they are by the Bill of Rights. No cases have been found involving a civil rights claim arising out of the grant of an antenna permit.)

15.2.1 Some Leading Cases and Statutes 15.2.1.1 New York The decision whether to issue a permit is a discretionary determination and the actions of the government in such instances are immune from lawsuits based on such decisions (see Rottkamp v. Young, 15 NY2d 831, aff ’d 21 AD2d 373, 377; see also Matter of Parkview Assocs. v. City of New York, 71 NY2d 274; City of New York v. 17 Vista Associates, 84 N.Y.2d 299, 642 N.E.2d 606, 618 N.Y.S.2d 249).

Lawsuits 299 15.2.1.2 Texas City of Round Rock v. Smith, 687 S.W.2d 300 (Tex. 1985), held that, as the approval of a subdivision plat is a governmental function, a city cannot be liable for negligent approval of a plat after the developer had filled in natural watercourses that provided drainage. 15.2.1.3 Vermont Municipal immunity is a common-law doctrine dating back to the mid-1800s in Vermont. Vermont follows the common law and provides municipal immunity for functions that are “governmental” as distinguished from “proprietary” in nature. See Hillerby v. Town of Colchester, 167 Vt 270, 272 (1997). 15.2.1.4 Massachusetts See Mass. Gen. Laws Ch. 258, §10. The law specifically provides immunity against claims based on issuance of or refusal to issue a license or permit, failure to inspect or negligent inspection, acts or omissions connected with fighting a fire, failure to provide adequate police protection or to arrest or detain suspects or enforce any law, and the release of persons in public custody. 15.2.1.5 All New England States Extend Municipal Immunity to Discretionary Acts See Conn. Gen. Stat. §52-557n(a)(2)(B) (Supp. 1997); Gordon v. Bridgeport Housing Auth., 544 A.2d 1185, 1189 (Conn. 1988); Me. Rev. Stat. Ann. tit. 14 §8104-B(3) (West Supp. 1996); Adriance v. Town of Standish, 687 A.2d 238, 240 (Me. 1996); Mass. Gen. Laws Ch. 258, §10(b); Horta v. Sullivan, 638 N.E.2d 33, 36–37 (Mass. 1994); Merrill v. City of Manchester, 332 A.2d 378, 383 (N.H. 1974); and Haley v. Town of Lincoln, 611 A.2d 845, 849 (R.I. 1992).

15.2.2 Looking Beyond Municipal Immunity If we’re in the middle of a hurricane, children should not be outdoors, and there are bigger problems than a radio antenna falling down. Parents who allow children outdoors in such circumstances could be responsible for contributory negligence should a child be injured—because injury would be seen as a natural consequence of flying debris. The town also carries general liability insurance. The premium for protection against a successful claim in the face of governmental immunity is no doubt tiny, reflecting—one suspects—only the cost of the defense, because the likelihood of success by a plaintiff on the merits is so low. Construction in accordance with the building code is all that is required—of all parties. Concern for the hypothetical plaintiff, playing outdoors during a hurricane, is laudable. Yet, the applicant, denied a permit for an antenna system on grounds primarily or partially out of concern for liability, represents a much more likely plaintiff.

15.3 Stress In the course of my years of representing applicants for antenna permits, I’ve found that being in a lawsuit can be very stressful. When I went through it 20 years ago—as a lawyer who knew that he’d win—it was stressful. There will always be questions. If you are erecting an antenna-support structure on spec (in the

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hope that this speculative venture will pay off), there will be questions you ask yourself, or questions from a spouse, that amount to: “Are you sure you want to go through with all this just for a tower on this site?” It is a legitimate question. No one at AT&T Wireless loses sleep when they are engaged in a lawsuit. But, if you are a small operation, and you will personally be a witness, the situation can feel very distressing. Fortunately, well-represented tower owners who were entitled to their permits win a lot of these cases. Even though your likelihood of success may be good, prepare yourself for the stress of it all and analyze the budget to see if the proposition is still profitable after including litigation costs.

15.4 Can I Sue to Recover My Legal Fees? Yes. See above. Anyone can sue for anything. The real question must be “What is the likelihood of recovering my legal fees?” Frankly, the answer is that your likelihood of recovering your legal fees is not good, at least not in the United States. The tradition here is that each side in a controversy pays its own legal fees, absent special circumstances. Nonetheless, now and again the municipality takes a stupid pill and puts forward a defense which, in the words of a New York law (22 NYCRR 130-1.1), is “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law.” This New York law may have a cognate in your jurisdiction. There is a Massachusetts case that stands for virtually the same proposition.

15.4.1 The Barrett Case In this case, the Barretts claimed fees under a state statute that permits a court to award fees where the position of a municipality, Board, or Commission (or even a neighbor!) is “wholly insubstantial, frivolous and not advanced in good faith.” Just such an example, where fees were awarded to someone abused by the Falmouth (MA) Conservation Commission (the Conservation Commission insisted on a buffer strip, though it had no authority to require it), occurred in Barrett and Barrett v. Conservation Commission of Falmouth, Mass. App. Ct. (1996) (see filenames Barrett v Conservation Com.pdf and Barrett II.pdf on the CD) under Massachusetts General Laws, Chapter 231, §6F (http://www.state.ma.us/legis/laws/mgl/231%2D6f.htm). Your state may have a similar statute. Here’s the wording of the Massachusetts statute (http://www. state.ma.us/legis/laws/mgl/231%2D6f.htm):

Chapter 231: Section 6F. Costs, expenses and interest for insubstantial, frivolous, or bad faith claims or defenses Section 6F. Upon motion of any party in any civil action in which a finding, verdict, decision, award, order or judgment has been made by a judge or justice or by a jury, auditor, master or other finder of fact, the court may determine, after a hearing, as a separate and distinct finding, that all or substantially all of the claims, defenses, setoffs or counterclaims, whether of a factual, legal or mixed nature, made by any party who was represented by counsel during most or all of the proceeding, were wholly insubstantial, frivolous and not advanced in good faith. The court shall include in such finding the specific facts and reasons on which the finding is based.

Lawsuits 301 If such a finding is made with respect to a party’s claims, the court shall award to each party against whom such claims were asserted an amount representing the reasonable counsel fees and other costs and expenses incurred in defending against such claims. If the party against whom such claims were asserted was not represented by counsel, the court shall award to such party an amount representing his reasonable costs, expenses and effort in defending against such claims. If such a finding is made with respect to a party’s defenses, setoffs or counterclaims, the court shall award to each party against whom such defenses, setoffs or counterclaims were asserted (1) interest on the unpaid portion of the monetary claim at issue in such defense, setoff or counterclaim at one hundred and fifty percent of the rate set in section six C from the date when the claim was due to the claimant pursuant to the substantive rules of law pertaining thereto, which date shall be stated in the award, until the claim is paid in full; and (2) an amount representing the reasonable counsel fees, costs and expenses of the claimant in prosecuting his claims or in defending against those setoffs or counterclaims found to have been wholly insubstantial, frivolous and not advanced in good faith. Apart from any award made pursuant to the preceding paragraph, if the court finds that all or substantially all of the defenses, setoffs or counterclaims to any portion of a monetary claim made by any party who was represented by counsel during most or all of the proceeding were wholly insubstantial, frivolous and not advanced in good faith, the court shall award interest to the claimant on that portion of the claim according to the provisions of the preceding paragraph. In any award made pursuant to either of the preceding paragraphs, the court shall specify in reasonable detail the method by which the amount of the award was computed and the calculation thereof. No finding shall be made that any claim, defense, setoff or counterclaim was wholly insubstantial, frivolous and not advanced in good faith solely because a novel or unusual argument or principle of law was advanced in support thereof. No such finding shall be made in any action in which judgment was entered by default without an appearance having been entered by the defendant. The authority granted to a court by this section shall be in addition to, and not in limitation of, that already established by law. If any parties to a civil action shall settle the dispute which was the subject thereof and shall file in the appropriate court documents setting forth such settlement, the court shall not make any finding or award pursuant to this section with respect to such parties. If an award had previously been made pursuant to this section, such award shall be vacated unless the parties shall agree otherwise. Again, the important thing about this statute is that your state may have a similar one. Even if your state does not have such a statute, it is not required, because, if you are in federal court anywhere, Rule 11 of the Federal Rules of Civil Procedure (FRCP) would apply. Furthermore, most state courts have a version of this same Rule 11: Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions … (b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of

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the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. (c) Sanctions. (1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee. (2) Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion. (3) On the Court’s Initiative. On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b). (4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation. (5) Limitations on Monetary Sanctions. The court must not impose a monetary sanction: (A) against a represented party for violating Rule 11(b) (2) … As stated above, many state courts follow variations of this same rule of court. Here’s one wrinkle. You would, of course, hope that the attorney for the municipality puts forward the same unwarranted claim that was the basis of the decision by the Board that ruled against you.

Lawsuits 303 However, smart municipal counsel will try to defend the decision on more defensible grounds. Blessedly, the courts are onto that ploy (http://bulk.resource.org/courts.gov/c/F3/297/297.F3d.14.01-2472.html): A board may not provide the applicant with one reason for a denial and then, in court, seek to uphold its decision on different grounds. National Tower, L.L.C. v. Plainville Zoning Board of Appeals, 297 F.3d 14 (1st Cir. 2002)

15.4.2 No Recovery of Legal Fees for Cellular and CMRS Cases If you are a carrier, or other party claiming the right to construct a tower by virtue of the Communications Act of 1996, you are the sad victim of a decision by the Supreme Court of the United States, which is unlikely to be revisited any time soon. Mark Abrams sued the City of Rancho Palos Verde, CA, seeking injunctive relief under §332(c)(7)(B)(v) of the Communications Act of 1934, 47 USC §332(c)(7), as added by the Telecommunications Act of 1996 (TCA), and money damages under 42 USC §1983 (the civil rights statute involving the recovery of monetary damages). He received the injunctive relief he sought. Though he won legal fees when the matter was heard by the Ninth Circuit Court of Appeals, the matter was appealed to the U.S. Supreme Court and now stands as an obstacle to the recovery of legal fees in Commercial Mobile Radio Service (CMRS) cases. That decision held that “[a]n individual may not enforce §332(c)(7)’s limitations on local zoning authority through a §1983 action. The TCA—by providing a judicial remedy different from §1983 in §332(c)(7) itself—precluded resort to §1983.” See City of Rancho Palos Verdes et al. v. Abrams, 544 U.S. 113 (2005) (http://www. law.cornell.edu/supct/html/03-1601.ZS.html).

15.4.3 Recovery of Legal Fees for a Broadcaster The position of a broadcaster may be different from that of a cellular carrier, because the specific remedies set forth in 47 USC §332(c)(7) are limited to CMRS. While no known case has yet upheld a claim for legal fees by a broadcaster whose permits a municipality illegally denied, there is a good argument to be made. As this line of reasoning cannot be found in any court decision, it is presented here. In Koor v. City of Lebanon, New Hampshire, Koor’s position was that, as a broadcaster, it is a First Amendment “speaker” subject to “reasonable, narrowly drawn statutes [that] may regulate the time, place, and manner of expression but that … blanket prohibitions of expression are invalid….” Broadcasting is clearly a medium affected by a First Amendment interest. United States v. Paramount Pictures, Inc., 334 U.S. 131, 166 (1948). “But the reach of radio signals is incomparably greater than the range of the human voice and the problem of interference is a massive realty.” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 387–88 (1969). “[I]f two broadcasters were to attempt to transmit over the same frequency in the same locale, they would interfere with one another’s signals, so that neither could be heard at all. The scarcity of broadcast frequencies thus required the establishment of some regulatory mechanism to divide the electromagnetic spectrum….” Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) (internal citations omitted). The FCC’s regulation of minimum antenna heights, specifically required to avoid interference with other stations on the same or nearby frequencies, is a part of the regulatory mechanism. The City cannot create an effective total ban on this form of First Amendment speech by creating an effective total ban on new AM broadcasting. See Metromedia v. San Diego,

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453 U.S. 490 (1981) (holding that a total ban on billboards was not a time, place and manner restriction). Under a First Amendment analysis, the City’s height ordinance requires a higher level of scrutiny than an ordinary land use regulation.

Koor won the case on preemption grounds, and the New Hampshire Supreme Court never decided the question of legal fees on substantive grounds. That question is still open for a broadcaster.

15.4.4 Over-the-Air Reception Devices (OTARD) Rule on Recovery of Legal Fees Some courts have held that fee shifting is appropriate in the satellite TV dish antenna cases under 47 CFR §1.4000, which allowed §1988 recovery of fees when the municipality ignored FCC regulations. See Loschavio v. City of Dearborn, 33 F.3d 548 (6th Cir. 1994), cert. denied, 115 S.Ct. 1099 (1995); Ermler v. Brookhaven, 780 F. Supp 120 (EDNY 1992).

15.5 Conclusion All of the above said and done, don’t count on getting a court to award you your legal fees. Most towns are too smart to be so blatant that a court will award fees on the basis of bad faith. But it does happen. For CMRS cases, absent a claim of bad faith, that door to fees seems closed. For broadcasters, no one knows the outcome. There is case law that supports fee shifting for cases under the OTARD rule. So, what type of applicant are you?

C HA P TER 1 6

Now Get the Permit and Build Your Antenna System!

Congratulations! You’ve been granted a Special Permit or perhaps a Variance. Can you put up your tower now? No. What you really have now is permission to go to the Building Inspector (your new best friend). Even if you never needed a Special Permit or Variance, you still need to read this chapter.

16.1 The Process 16.1.1 The Application The typical Building Permit application is fairly simple, normally demanding no more than you have already assembled for any public hearing. If you didn’t have to go through a public hearing and you are applying directly for a Building Permit, you will still find that you must supply many of the same items discussed previously: plot plan, setback information, height, description of the proposed work, etc. If you haven’t already done so, it is now time to make a formal call on the Building Inspector to discuss what he or she needs before signing the permit. Assemble what is requested and file it, pronto! Be sure to get a date stamp on the filing, and keep a copy of the stamped filing. After the Building Permit is granted, do not lose it! The original is very important, since typically the Building Inspector wants to see it posted at the job site so he can sign it at each inspection.

16.1.2 Posting Now that you have the permit, you’ll notice that it says something like “Post at worksite.” Let’s consider this requirement. Should you post it in at the front gate, near the street where passersby can see it? Or should you post it near the job site, deep in the woods? If you have the luxury of a place to put the Building Permit where it is less likely, or unlikely, to be seen by the public, that’s what you should do. There will always be someone who never knew about your Special Permit or Variance proceeding. Reduce the chances that this person will learn about the project before the fait accompli stage, if possible. Do what is required and no more, but do not fail to do exactly what is required.

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At the start of your project, you cannot hang the Building Permit from the structure, since you haven’t even dug the first hole in the ground yet. So step about 8 feet away from the proposed base site, and pound a 1 ⫻ 3-inch or 2 ⫻ 4-inch post into the ground. The post should be tall enough to go down 1 foot and up 2 or 3 feet above the highest snow you expect during the winter. Mount the Building Permit on the post in a plastic bag, a page protector, or the like (open side down). This will keep it from getting wet. Many Building Inspectors like to make efficient use of their field time and they will not necessarily schedule a visit with you. Instead, the Building Inspector may just drop by after you’ve told him that you are ready for the next inspection. Thus, the Building Inspector wants to drop by, take a look, sign the posted permit, and leave. For this reason, make sure the inspector knows how to get on the property (and through your gate, if necessary), and do not keep the permit indoors.

16.1.3 Inspections Since few Building Inspectors have a great deal of experience with the construction of antenna-support structures, you’ll have to negotiate a bit on exactly what inspections will be required. Ask the Building Inspector to cross out and initial several of the boxes, such as “plumbing” or “electrical” (if you have no lights). Why be so formal? Sadly, the Inspector could get hit by a bus or be fired. You want the next Inspector to know exactly where to pick up the ball. See Figure 16.1, which shows a Building Permit granted to Fifth Estate. Basically building permit posters haven’t changed for decades, although some jurisdictions have now computerized and entries are made back at the Building Inspector’s office. The usual permit calls for inspections for several specific purposes: ●

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To see holes at the correct depth (for a guyed structure, that’s four holes—the base and three anchors), the stones at the bottom, the “dobie bricks” (usually available at Home Depot in the section near the concrete mixers) so your rebar won’t stick down into dirt, and the rebar (neatly tied with wire) To see that the concrete has been poured and finished, which means going about six inches up (or more!) for the base and staying below grade (or going above grade, whatever is called for in your plans) and backfilling for the anchors—follow the directions of your structure’s manufacturer To see the finished structure and to see that it is properly grounded—for this inspection, you should have the safety wires on the anchor turnbuckles, the anticlimbing device (if one is required), and so forth

At each inspection, the Building Inspector should simply initial and date the appropriate box. After the last inspection, the Building Inspector may let you keep the permit or he may want it for his file. In any event, you want a copy for your file, to prove dates. Since you may not be there when he makes the last inspection, make a photocopy before you invite the Building Inspector to make the last inspection, then go to work on securing a Certificate of Completion. As most projects involve habitable structures, some jurisdictions do not call it a “Certificate of Completion” or a “Certificate of Use,” but rather a “Certificate of Occupancy.” The proper term should be Certificate of Completion, or Certificate of Use, but it is not worth having an argument with the Building Inspector on this.

Figure 16.1 Building Permit granted to The Fifth Estate Tower, LLC.

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16.1.4 Technical Standards If you are contracting out the construction or if you are subleasing to someone who will do his own construction, you may wish to include a set of technical standards in the building contract or lease. Some of these technical standards refer to electrical code requirements, some are common-sense engineering, some are standards designed to reduce rust, and so forth. If you are new to the game and have never seen a set of construction standards, you might find these helpful. Obviously, some of the items mentioned may not apply in your situation. Feel free to modify these technical standards (borrowed from an experienced tower company) to fit your situation. Antenna Site Technical Standards I. General All users shall furnish the following to Licensor prior to installation of any equipment: 1) Site application. 2) Copies of FCC licenses/construction permits. 3) Accurate block diagrams showing operating frequencies, all system components (active or passive) with gains and losses in dB, along with power levels. 4) Copies of manufacturers’ equipment specifications. II. Written Consent Required The following will not be permitted at the Antenna Site without the written consent of Licensor, which consent may be withheld by Licensor in its sole discretion. 1) Any equipment without FCC type acceptance. 2) Add-on power amplifiers. 3) “Hybrid” equipment with different manufacturers’ RF strips. 4) Open rack mounted receivers and transmitters. 5) Equipment with crystal oscillator modules which have not been temperature compensated. 6) Digital/analog hybriding in exciters, unless type-accepted. 7) Equipment which does not conform to FCC Rules and Regulations. 8) Noncontinuous duty-rated transmitters used in continuous duty applications. 9) Transmitter outputs without a harmonic filter and antenna matching circuitry. 10) Change in operating frequency(ies). 11) Equipment not designed for high-density site applications. 12) Ferrite devices looking directly at an antenna. 13) Nickel-plated connectors. 14) Cascaded receiver multicouplers/preamps. II. Radiofrequency Interference Protective Devices In general, the following minimum specifications will apply:

Now Get the Permit and Build Your Antenna System! 309 30–76 mHz Isolators—minimum of 30 dB TX output cavity—minimum of 20 dB rejection @ plus or minus 130–114 mHz Isolators—minimum of 30 dB with bandpass cavity 406–512 mHz Isolators—minimum of 60 dB with bandpass cavity 806–866 mHz Isolators—minimum of 60 dB with bandpass cavity ⬎ 866 mHz—as determined by Licensor It should be emphasized that the above specifications are minimum requirements. Additional protective devices may be required based upon evaluation of the following information: Theoretical TX mixes, particularly second antenna location and type, combiner/multicoupler configurations Transmitter specifications Receiver specifications Historical problems Transmitter to transmitter isolation Transmitter to antenna isolation Transmitter to receiver isolation Calculated level of IM products Transmitter output power Transmitter ERP Spectrum analyzer measurements VSWR measurements Existing cavity selectivity III. Antennas and Mounts 1) Mounted only on approved side arms or other specified mount, and only one per mount unless authorized in writing. 2) All mounting hardware galvanized or noncorroding metal. 3) Tagged with weatherproof labels showing manufacturer, model, frequency range, and owner. 4) Bonded with copper braid to tower. 5) Connections to be taped with stretch vinyl tape (Scotch #33 or equivalent) and Scotchkoted (including booted pigtails).

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6) Must meet manufacturer’s VSWR specifications. 7) Antennas with corroded elements must be repaired or replaced. 8) Must be DC grounded type, or have the appropriate lightning protection as determined by Licensor. 9) Unless otherwise authorized by Licensor, all antennas must be encased in fiberglass radomes. 10) Mounting pipes must be cut such that they do not extend above the antenna mounting sleeve. 11) Any corroded hardware must be replaced. IV. Tower 1) No welding or drilling of any tower members will be permitted. 2) Tower work shall be done only by authorized contractors. V. Cable 1) All antenna lines to be jacketed Heliax (or equivalent), 1/2-inch or greater. 2) No kinked or cracked cable. 3) Any cable fasteners exposed to weather must be nylon ultraviolet-resistant type or stainless steel. 4) All transmit interconnecting cables/jumpers must be solid copper outer conductor (1/2-inch superflex or equivalent), not to exceed 8 feet in length where practical. 5) All receiver intercabling must be 100% shielded coax. 6) All inside cable must be run in troughs where provided. 7) All unused lines must be tagged at both ends showing termination points. 8) All AC line cords must be three-conductor with grounding plugs. 9) Where no troughs or cable trays exist, all cable must be tied at not less than 3-foot intervals. 10) All transmission lines must be grounded immediately before making the bend under the waveguide bridge with grounding kits made specifically for this purpose. 11) All transmission lines must be clamped with stainless steel clamps made specifically for this purpose (not wraplock) to the waveguide ladder and to the waveguide bridge for the full external run of the line. 12) All antenna transmission lines shall be grounded at both the antenna and equipment ends, with the appropriate grounding kits. VI. Connectors 1) Must be Teflon filled, UHF or N type, including chassis/bulkhead connectors. 2) Must be properly fabricated (soldered if applicable) if field installed. 3) Must be taped and Scotchkoted at least 4 inches onto jacket if exposed to weather. 4) Male pins must be proper length. 5) Female contacts may not be spread.

Now Get the Permit and Build Your Antenna System! 311 6) Connectors must be plier tight as opposed to hand tight. 7) Must be silver plated or brass. 8) Must be electrically and mechanically equivalent to OEM connectors. VII. Receivers 1) No RF preamps permitted in front end unless authorized by Licensor. 2) All shields must be in place. 3) VHF and up must use helical resonator front ends. 4) Must meet manufacturer’s specifications, particularly with regard to bandwidth, discriminator swing and symmetry, and spurious responses. 5) Crystal filters/preselectors/cavities must be installed in RX legs where appropriate. 6) All repeater tone squelch circuitry must use “AND” logic. VIII. Transmitters 1) Must meet original manufacturer’s specifications. 2) All shields must be in place. 3) Must have a visual indication of transmitter operation. 4) Must be tagged with Licensee’s name, equipment model number, serial number, and operating frequency(ies). 5) All low level pre-driver and driver stages in exciter must be shielded. 6) All power amplifiers must be shielded. 7) Output power may not exceed 330 watts unless otherwise authorized by Licensor. IX. Combiners/Multicouplers 1) Shall at all times meet manufacturer’s specifications. 2) Must be tuned using manufacturer approved procedures. 3) Must provide a minimum of 55 dB transmitter to transmitter isolation. X. Cabinets 1) All cabinets must be bonded together and must be grounded to the building ground system. 2) All doors must be on or closed. 3) All non-original holes larger than 1 inch must be covered with copper screen or solid metal plates. XI. Installation Procedures 1) Installation may take place only after Licensor has been notified of the date and time and only during normal working hours unless otherwise authorized. 2) Equipment may not be operated until the installation has been approved by Licensor, which approval shall not be unreasonably withheld.

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XII. Maintenance/Tuning Procedures 1) All external indicator lamps/LEDs must be working. 2) Equipment parameters must meet manufacturers’ specifications. 3) All cover, shield, and rack fasteners must be in place and securely tightened. 4) Local speakers must be turned off except during service. XIII. FCC Licensing 1) All FCC licenses must be current. XIV. Interference Diagnosing Procedures 1) All licensees must cooperate in a timely fashion with Licensor when called upon to investigate a source of interference, whether or not it can be conclusively proven that their equipment is involved. XV. Miscellaneous 1) All installations must be maintained in a neat and orderly manner. 2) Doors to equipment and antenna spaces shall be closed and locked at all times. 3) Access to equipment and antennas shall be by authorized personnel only, and only for purposes of installation, service or maintenance. 4) No trash may be stored on site. Boxes and packing material must be removed immediately. 5) Only combination locks, or a lock box, may be used, and combinations must be provided to Landlord.

Here’s a different set of technical standards, from a different source. It is included to give you an assurance that you need to consider what is relevant to your site:

Construction Practices 1.

Tenant shall replace the Initial Construction Drawing of Exhibit B with an “as built” survey of the Premises once Tenant receives it.

2. All Tenant equipment and construction shall be set back from the Property’s boundaries as required by the applicable governmental authorities. 3. The access way’s width shall be only the width required by the applicable governmental authorities, including police and fire departments. Any upgrade which may be required by an applicable governmental authority shall be at Tenant’s expense. 4. Tenant is authorized to install and maintain the equipment shown on the Landlord-approved Initial Construction Drawing, for which an “as built” drawing to substitute as Exhibit B-2 shall be provided within 90 days of the completion of Tenant’s construction. The type, number, mounting positions and locations of antennas and transmission lines, as well as all other installed equipment, shall be portrayed in the “as built” survey drawing. The “as built”

Now Get the Permit and Build Your Antenna System! 313 drawing will thereafter be replaced and kept current as necessary, should Tenant’s equipment on the Tower change, after approval if it represents a change or modification. Cost for such work shall be borne by the Tenant. After initial construction, no change or modification of equipment on the tower, or outside of the equipment building, as shown on the “as built” drawings, may thereafter be made without written consent of Landlord in the form of a Plan Approval. In any event, however, no change may materially increase Tenant’s windloading on the tower, and Tenant will provide evidence to Landlord’s reasonable satisfaction that equipment exchanges or upgrades do not increase loading on the Tower. A Plan Approval will only be issued upon receipt by Landlord of (a) a detailed plan of the proposed construction, replacement or upgrading, (b) all necessary governmental approvals, including a building permit if necessary, and (c) receipt by Landlord of assurance from its own engineer that the proposed construction, replacement or upgrading will not affect windloading on the tower, nor interfere with other tower users. The cost of this review, up to $1,000 (which cost maximum shall increase at the same rate of annual increase as the rent), shall be at the expense of Tenant. 5. Landlord understands that the location of any utility easement on the Initial Drawing is illustrative only. The actual location will be determined by the servicing utility company in compliance with all local laws and regulations and approved by Landlord. 6. All construction shall comply with generally accepted good commercial construction practices, including: (a) In case of suspected interference or intermodulation problems, Tenant must cooperate in a timely fashion with Landlord, whether or not it can be conclusively proven whose equipment is involved. (b) All ferrous metals used as part of the mounting hardware must be hot-dipped galvanized or stainless steel. The screws, bolts, lock washers and nuts should be either stainless steel, brass or hot-dip galvanized. (c) All antennas shall be tagged with weatherproof labels showing the manufacturer, model and frequency range. (d) For grounding systems, the metallic contact surfaces where the interconnections are made should be cleaned and be free of foreign materials like paint and rust. All exposed metallic contact surfaces shall be coated with an antioxidant compound. Where possible, grounding connections shall be cad-welded. (e) Tenant shall cooperate with Landlord in a timely fashion to ensure that RF exposure for tower repair/rigging personnel, or other construction personnel perform work at the site, does not exceed the limits of 47 CFR §1.1310, or as it may subsequently be amended. If necessary to comply with the FCC’s Maximum Permissible Exposure guidelines, the power to antennas shall be temporarily reduced as much and as long as necessary to avoid exposing the crew to RF emissions in excess of the current FCC standards. (f ) Tenant may not store materials outside of its equipment building or enclosure. Garbage and packing material shall be promptly removed from the Premises. Garbage and packing material remaining on the premises for more than seven (7) days after Notice, may be removed by Landlord at Tenant’s expense.

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16.1.5 Construction Tips Don’t give your unfriendly neighbors a reason to go screaming to the Building Inspector. This is another way of saying: “Don’t give the Building Inspector a reason to doubt your good faith or ability to build the project correctly and safely.” Here are some tips: ●

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When you cut down trees, get the slash out of the way. You don’t want the neighbors to go complaining that you are raping the forest. Make neat piles of firewood. Don’t leave any wood where it could later interfere with the pouring of concrete or the handling of ropes during construction (as you go vertical). If the construction crew eats on-site (and they all do, sooner or later), make sure they clean up. No bottles or cans, paper or plastic bags, or luncheon trash should be left behind. The neighbors hate that, because, sooner or later, the trash will get blown around—perhaps even off the site. When you dig a hole in the ground, cover it before leaving the site—even if just overnight. If you are going to bury cables in PVC pipe (or conduit), close up the trench as you go so no one twists an ankle. When you pour concrete in the winter, cover it with straw and a tarpaulin to aid proper curing. When you pour concrete in the summer, spray it with water to help the cure. When you install ground rods, make sure there are no sharp bends in the ground wires. When you run the guy wires to the anchor points, either protect them with guy guards (see Chapter 6) or plant bushes so no one will run into them accidentally. Before the bushes are planted, put construction orange tape on guy wires as flags to make them visible. Don’t leave rotator cable, lighting cable, control cables or feed lines dangling across your yard at a height that could catch someone in the neck or face, even if that person would have to be on horseback. (The author once had a client against whom a lawsuit was brought when a trespassing horseback rider hit a cable and fell off. Fortunately, the suit was later dismissed, when film showed the rider competing in a subsequent horse show, but you might not be so lucky.) Don’t run 110-V AC to the base of the tower without an electrical permit (and inspection). If you decide to run 110-V AC to the base of the tower for tools, use a ground-fault interrupter (GFI) socket to detect a ground fault interruption.

16.1.6 The Certificate of Completion When the project is completed, invite the Building Inspector back for the final inspection. This is a point in the process where it can be easy to let a few things slip. These things are so easy to do that now is not the time to get sloppy. I’ll explain why in a minute. Don’t let it slide. Keep a signed copy, and be sure it has a date on it to prove that the structure was built within two years from the grant of the original permit (or whatever your state requires) and to prove that it was built before the town may have changed a bylaw—to grant you the status of a prior existing structure with vested rights. Remember that we have always insisted you call it a structure? This is one of the reasons. The law surrounding this subject matter is called the law of prior existing structures.

Now Get the Permit and Build Your Antenna System! 315 If, for whatever reason, you must get a renewal or a subsequent inspection, a year later (or two or three or five), this is the time to get an agreement from the Building Inspector about when that subsequent renewal or inspection should take place. Will it be on the anniversary of the grant of the permit, the anniversary of the Certificate of Completion, or some other time? Put it in a memo to yourself and write it in your calendar. It is very embarrassing not to know when your permit is up for renewal. It can also be devastating. If your renewal date comes and goes and the bylaw has changed, you could wind up with a prior existing structure for which you no longer have a permit. This could require you to reapply and, if everything is going badly for you in this life, you might be forced to reapply under any new bylaw that may have passed since you were granted your original permit. This is not a good thing. When the blessed day comes that you have completed your construction for the purposes of the Building Permit (this awkward phrase represents the fact that few folks in the communications business have ever completed an antenna installation—as there is always another experiment to perform, a new path required, a new frequency to use), it is time for you to seek out from the Building Inspector a Certificate of Completion. Similar to a Certificate of Occupancy, sometimes called a Certificate of Use, this certificate serves several purposes: ●

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It tells your insurance company that you built the project according to the building code, and if the system should ever suffer, for whatever reason, it could prove helpful in filing your insurance claim. Among other reasons, it tells the adjuster that you did not have a “phantom” system upon which you are now trying to make a fraudulent claim. It serves to show that you had completed construction and your system had become a prior existing use before any subsequent bylaw changes. It can be shown to any neighbor who wants to know if what you’ve put up is “safe.” Should you need it for this purpose, however, be gentle. It never pays to make an enemy of your neighbor. Some readers may have passing familiarity with the expression “Love thy neighbor.” Here are some real-life examples of Certificates of Completion, issued in letter form, where only the identifying information has been changed. If your Building Department doesn’t have a form, type up something based on the concepts below and ask the Building Inspector to sign it. These form letters are on the CD under filename Building Inspector Form Letters.doc.

Dear Mr. Caster: Construction under Building Permit # ______, having been completed in accordance with its terms and conditions, this Certificate of Use is hereby granted on [date]. (Signature) Name Building Commissioner/Inspector

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or Mr. Caster, It is my opinion, as Building Commissioner for the Town of xxxxx, that the antenna-support structure, with appurtenant antenna systems, located on the approved site plan and constructed on your property at [Address] Street conforms to the xxxxx Zoning Bylaws and the [Name of state] State Building Code regulations. This letter is the final affidavit for the tower as permitted. Sincerely, (Signature) Name Building Commissioner

Once you’ve got that Certificate of Completion in hand, make a photocopy and put it in your file. In addition, you might consider taking a photograph of the structure with a child or two (or three or four would be even better) around the base. This makes it easy to demonstrate later when the structure was erected, should an argument ever erupt. Why would you want to pose children around the base of the tower? Because they’ll be older and taller in later years when the controversy erupts about when you constructed the antenna-support structure. At this point in the discussion, someone always suggests that you just use a stick to put the date in the concrete. Bzzzzt! Concrete poured today could have 1492 written into it, but that would not prove that the tower was built in 1492. Someone else may suggest that you take a photograph holding that day’s newspaper. Another Bzzzzt! It is possible to stand in front of a new tower holding a newspaper with the headline “Dewey Wins!” but that does not mean that the tower was built in 1947. You could, however, mail a photograph (and I do recommend that you have people in it who may be alive later to testify) to yourself as a postcard to get a postmark. Put the originals in the company vault or someplace where it will not get tossed out by your successor when he cleans out your files. Now you can relax, smile, and enjoy other things. After a few days of use, and when the site is really clean, make up your mind to reestablish relationships with your neighbors. You’ll want to do this for several reasons: ●

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It is the right thing to do—after all, you will still be neighbors. You don’t want them to poison your children at Halloween, do you? It is also what your religion tells you to do. You don’t want them to go running to the Building Inspector every time you change out a connector because water seeped in, or every time you change a light bulb. Permanent war is no fun.

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You may one day want to erect a satellite dish or a second antenna structure or mount a spotlight where you park—who knows? You don’t want to go to war all over again because you never smoothed those feathers. And, finally, there is always the possibility that your town requires a renewal at some point in the game. That will be covered in detail in the next chapter. Be the first to bring bread and salt, or wine, to any new neighbor. Welcome new families to your neighborhood. They’ll be less inclined to gang up on you later.

The point? Make your enemy your friend. That may sound like a bumper sticker, but the concept will permit you and your company to return to a state of neighborhood tranquility.

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17.1 Construction Problems In towns where an antenna system may be constructed without a Special Exception, Special Use Permit, or the like, neighbors may first find out about construction of your system when you begin constructing it. This can sometimes cause a flurry of activity on their part. If you are afraid that a neighbor may go ballistic when you start construction, there are several principles you can use to reduce distractions to the construction of your antenna system: ●

Work fast.

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Work neatly.

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Work thoughtfully.

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Work safely.

17.1.1 Work Fast Have you ever noticed that hostile corporate takeovers often begin on a Friday afternoon after the market closes? Have you ever noticed that when the President of the United States is about to do something unpopular, it is usually announced on Friday night, after the national newscasts, or early on Saturday morning? It is more difficult, although not impossible, to assemble a corporate-takeover defense team if everyone you need has gone away for the weekend. Similarly, if bad news is released and published in the Saturday papers, by Sunday morning it is old news and may no longer warrant a headline. Similar thinking suggests that if you have a permit in hand, you should begin construction after the Building Inspector goes home on Friday afternoon and finish before he comes in on Monday morning. Why would you do that? For one thing, it becomes more difficult, if not nearly impossible, for the Building Inspector to issue a stop work order over the weekend. The neighbors may not know how to reach him, and the police will consider it to be a civil matter that can wait until Monday morning. Building over the weekend is not impossible, if you have an existing set of holes in the ground, a concrete base that has cured (allow 10 to 27 days, depending on local construction requirements), and 319

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the first section or pier pin plus anchors all ready to go. Do the rest of your preparation in a garage to avoid creating a stir. Preparation for fast construction should include putting each section of a lattice structure together on the ground, filing off burrs, and reaming out bolt holes as necessary, marking matching legs with colored tape and so forth. It would also include building guy sets, or as much of them as possible, in advance in a garage—out of sight. A heavy equipment contractor who specialized in building golf courses first introduced me to this concept. Over an Egg McMuffin one day, he described to me how he once found himself in a situation where a privately owned woods was going to be converted into a golf course. He checked with the Building Inspector to see if any Special Permits would be required to clear the land and was (correctly) told that no Special Permits would be required. So he lined up a huge crew of forest workers and machinery. They went to work on Friday afternoon and worked almost continuously until Sunday night. On Monday morning, the neighbors were banging on the Building Inspector’s door, demanding that he find a way to stop the construction. Lacking authority to stop the construction, but wishing to appear responsive to the neighbors, the Building Inspector called the contractor and asked him to hold off a while so the town Conservation Commission could consider the situation. To this request, the builder replied: “Of course, but perhaps you should drive over here to better understand the situation.” Eighteen acres had been cleared over the weekend. Ever hear of the French expression fait accompli (translated literally as “accomplished fact”)? In the Middle East, this is known as “creating facts on the ground.” The fait accompli is a well-established principle of international relations. It can be employed by the communications industry, too. Of course not everyone can erect a tower over the weekend, but perhaps you’ve enjoyed learning about the strategy.

17.1.2 Work Neatly It sounds odd but it is a fact of life: Your neighbors may not know whether you have designed your support structure well or badly, but they can tell if you are sloppy or neat. So, if you work neatly, they will think you have designed well. Whether this is rational or not is debatable, yet it is still an oftexperienced fact. Thus, you can instill confidence in your neighbors by doing a few simple things: ●

If you must store things outdoors (although you’d be better off strategically with indoor storage), stack support sections and antenna parts neatly.

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Build your rebar cages in a garage, perhaps off-site.

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Cover holes with plywood so no one falls in.

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Cover outside piles of materials with tarpaulins.

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Cut guy wire ends to length and tape them.

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Coil excess cables neatly. Use a wood chipper to get rid of slash. Rake the construction area and plant grass as soon as possible.

In other words, don’t leave your construction site looking like a construction site.

17.1.3 Work Thoughtfully Be considerate of your neighbors. Don’t stack things along the property line. Don’t store antennas along the property line. Plant bushes to block the view where guy wires meet your guy anchors.

17.1.4 Work Safely Never leave an open hole. Get that anticlimbing device on the structure as fast as possible. Wear safety glasses. Wear hard hats. Use handy-talkies instead of shouting. Keep nosey kids away (nicely, of course) for their own safety. Many of the strategies for working neatly also result in greater safety.

17.1.5 Tree Removal The golf course story above reminds me of a ham who became the victim of irate neighbors. Intending to install both a swimming pool and an antenna-support structure the following year, he had about an acre of his backyard forest cleared. With a whole year to organize and bare stumps to point at, the neighbors built up a full head of steam before the ham went to the permit-granting authority for his Special Use Permit to erect and maintain an amateur radio antenna system. The neighbors organized and fought, raising the grief factor substantially for the ham and requiring him to retain a lawyer. If he’d built the antenna-support structure in the woods and cleared the land later for the pool, his situation might have been different. Think hard about the phases of construction, so you can improve your chances of obtaining a permit. There will always be neighbors who hold to a simply expressed view: “We love trees.” For some reason, they believe that this view also entitles them to require you to forego the use of your own land. He may be legally wrong, but a determined neighbor who holds this view can make your life miserable. Think very hard about your land-clearing strategy. How much of a clearing do you need to start your project? Can you live with “alleys” for guy wires instead of a cleared acre? Can you live with an alley created by discrete cutting of the limbs on trees? Can you leave trees standing that can limit the ability of a neighbor to even see your antenna system? Please remember that if tree cutting or limb cutting is part of your project (and especially if you don’t live in a rural area), get rid of the slash quickly. Do this before neighbors can take photos, however irrelevant, of trees and branches all over your yard. Rent a chipper or have a landscaper chip up the slash. If your yard looks like a wreck, your neighbors will be upset. Nothing good happens when the neighbors are upset.

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17.1.6 Holes in the Ground Don’t leave any open holes in the ground. This will upset the Building Inspector and give the neighbors a reason to complain. It makes good sense anyway to cover holes with 2 ⫻ 4s and plywood so no one can fall in. Also, your insurance company wants you to do that. The issue you are attacking is an outcrop of an old Latin expression: falsum in unum, falsum in omnium (verbatim translation: “false in one, false in all”). This is a line of argument that holds that if you can be false about any one fact, you can be false about all facts. The problem with this line of argument is, of course, that it is not true. For example, is it necessarily true that you would falsely represent the visual impact of a communications antenna just because you once told your wife that you liked that hideous dress she’d just bought? However, you can be sure that neighbors who oppose you will stand up at a public hearing and say: “He left open holes in the ground. This is dangerous construction. How can we believe that he’ll build a safe antenna-support structure?” So, be a good neighbor and make sure you build anything you build safely. This way, when you later stand up at the hearing and say that you are going to build this antenna system yourself and it will be safe, you will be more believable.

17.1.7 Anticlimbing Devices Some applicants are reluctant to include their plans for an anticlimbing device in the Special Use Permit application. They may feel it is not necessary. They may feel that any kid who climbs the tower and gets hurt is just a trespasser who gets what he deserves. They may think of this as yet another unnecessary government intrusion. You may think any or all of those things, but you will still be asked about it during the course of the hearing—unless the support structure is a push-up pole or something like a crank-up round pole that is inherently unclimbable. For your typical lattice structure, however, a device to prevent curious children from climbing it is often a requirement of municipalities. There is always some member of the Board who is reenacting in his mind the scene from the movie Kindergarten Cop, where Arnold Schwarzenegger must climb to save a frightened child who has climbed a huge, self-supporting microwave link tower to get away from something scary. The movie tower may be wider and taller than you had in mind, or it may be exactly what you had in mind, but such is the power of modern cinematic illusion—it may be stuck in the mind of a Board member. So don’t fight it. Include your method for preventing trespassers from climbing the structure in the application, and assure the Board that at least this element will not be a problem. There are several common approaches. One is to wrap the bottom 10 feet in hardware cloth and mount a ladder to begin your climb above the cloth fencing. Another approach uses either pine board or plywood. Start with a thick (1 inch is good; 3/8 inch may not stand up to the animals) plywood sheet, 4 ⫻ 8 feet. A sheet yields three panels just under 16 inches in width, each 8 feet tall. A 16-inch panel is adequate for Rohn 25G or other structures with a 12-inch

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Figure 17.1 K1ZM’s anticlimbing technique using hardware cloth.

face. It is just a bit too small for Rohn 45G or 55G, as those models have an 18-inch face. Start the panel at 2 or 3 feet above the ground and end 10 to 11 feet above the ground. This is above the grasp of all but the most determined trespassers. See Figure 17.1 for the method developed by K1ZM. You may also refer back to Figure 7.10 for the method used by K1HT, who uses neat construction with pine boards, painted gray in this case. Most commercial installations simply go forward with a 6- or 8-foot-high chain-link fence, the same style you’d put around a tennis court, topped by barbed wire pointing outward. However, make no assumptions. Some bylaws prevent chain-link fences, some require camouflage fencing, and some specify a particular type of enclosure.

17.1.8 Posting Your Registration Number When your Antenna Structure Registration (ASR) Number (also called the FCC Registration Number) has been issued, the next step is to decide where to display the number to make it most visible. Section 17.4(g) of the Commission’s Rules, 47 CFR §17.4(g), states that, with the exception of certain historic structures, “the Antenna Structure Registration Number must be displayed in a conspicuous place so

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that it is readily visible near the base of the antenna structure. Materials used to display the Antenna Structure Registration Number must be weather-resistant and of sufficient size to be easily seen at the base of the antenna structure.” Just use some common sense when posting the number. You are permitted to post the ASR Number on the fence or gate to the access road, or on the fence surrounding the tower. Ask, “Is this readily visible to someone who doesn’t have access to the site?” Take the following into account: ●

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Rules do not prohibit multiple postings of your ASR Number. You may wish to post around the perimeter of your structure and at the access gate. This is cheap insurance against a citation for failure to post the ASR Number. You are strongly encouraged to use the FCC Registration Number to make the identification of your structure painless. If you have “No Trespassing” signs posted or other signs that grace your property, your Registration Number should be posted with them. If not, someone would have to trespass to find your Registration Number, which is in conflict with the intent of the rules.

The FCC website (http://wireless.fcc.gov/antenna/about/postingguidelines.html) contains general guidance for posting and also provides answers to hypothetical situations you might encounter when posting. Tower site signs may be purchased from Antenna ID Products in Glenmoore, PA (www.antennaid .com), Curt Bennett’s Sign Pro of Lexington, NE, co-owned with KRVN (AM) ([email protected]), 888/230-7446.

17.1.9 “Danger: High Voltage” Signs If the town asks you to put up a sign saying “Danger: High Voltage,” you should resist (unless it is true that you have a high voltage point readily touchable). Your position is: “If it were true, I’d be happy to put it up. But it is not true, and the Board doesn’t want me to lie, right?” In addition, any sign at all is like inviting teenagers to defy the “sign of authority” and climb the structure. However, in the end, if they just absolutely, positively insist, put it up. If you can, put it on the face of the structure facing the backyard, where it is least likely to be seen by curious teenagers.

17.1.10 Phillystran This book cannot resolve controversies about costs, or the influence of metallic guy wires on radiation patterns. However, if guy wire visibility is going to be a complaint against you, it is hard to imagine anything less visible than a guy wire made so that the outer covering is black and uninterrupted. Grey galvanized steel quickly dulls and becomes hardly visible, but black guy wire is almost impossible to see at any time. If you install insulators in your guy wires to avoid parasitic resonances, those insulators do increase visibility if they appear above the tree line. Below the tree line, both galvanized steel and Phillystran are almost impossible to spot. In the interest of compromise with respect to cost, consider using Phillystran for guy wires above the tree line and convert to steel at the tree line. This is perfectly safe (even recommended by the

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manufacturer of Phillystran, who would rather not have Phillystran be too close to the ground, where a vandal or a small brush fire could attack it).

17.2 The TVI/RFI Complaint Before wading into the discussion of how to respond (in the sense of letters and legal actions) to a radiofrequency interference (RFI) complaint, see http://www.arrl.org/tis for some good information packages on various aspects of RFI. The ARRL RFI Book (http://arrl.org/catalog/) is another good source of help for all types of RFI problems. There’s nothing like curing an RFI problem to quiet the situation.

17.2.1 TVI/RFI Complaint by a Town Official It is with uncanny freakishness that it can be predicted that your site will wind up across the street from the sister of the Chairman of the Board of Appeals. This creates all kinds of problems. To deal with the most important one first, if your Board of Appeals (or other permit-granting authority) has no alternate members available should a member be forced to recuse himself, and one member recuses himself because he has interference from your site, you could wind up requiring unanimous approval from the remaining members of the Board. For example, you might find yourself needing all four votes on a five-member panel, where the fifth member cannot vote. While your presentation may be brilliant, winning unanimously is always hard. Second, RFI is a possibility in today’s world of poorly designed legacy VCRs or 49MHz wireless telephones left over from another era. Those who have experienced RFI just don’t want to hear your logic. They will complain, for example, to their brother, who is the Chairman of your permit-granting authority. This will happen even though putting your antenna higher in the sky not only will improve your coverage but will also reduce interference, simply because the antenna is farther away. The best way to deal with this is to be proactive and ask your neighbor if he or she has experienced any interference. Then, if necessary, do what you need to do. In any event, get the ball rolling! Prove that you are technically competent and try to ameliorate the problem. Show yourself to be a good neighbor. It will help later. Learn from the experience of others—engineering your way out of this problem is less expensive than trying to work your way out using a lawyer.

17.2.2 TVI/RFI Complaint by a Neighbor (Note: A much deserved “thank you” is due to Greg Becker, J.D., Ph.D., NA2N, and a former policeman, for advice contained in this section.) The first rule to remember when confronted by an angry neighbor who knocks on the door of your equipment shed is to let him say his piece. Don’t try to interrupt. Let him get it all out. Yet, venting only works when the situation is relatively calm, even within the nature of a confrontation. The instant it rises to the point where you feel that you may no longer be in control of the situation, end it if you possibly can. Close the door. Ask him to leave and come back when you can both be calm. Don’t know what to say? Try: “Listen, it’s late and we’re both a little upset. Can we talk about this another time when we’re both calm?”

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If it is late at night and no drinking is involved, ask if he can shut off his motion-sensor lights, TV, stereo, or whatever, and you can work on the problem during the day, or the next day—when you will have had the chance to gather some materials to work on the project. Nothing is going to get settled right then and there. If it is late at night and he’s been drinking, don’t even try to settle anything right then and there. If he starts yelling, tell him, “I’ll be happy to work with you to resolve this, but the way you’re acting is frightening me. Please leave. We can talk about this when we’re both calm.” The “frightening” part places language into the situation evincing your state of mind, should the situation escalate. Should the neighbor persist in that behavior, it strengthens the position that his threatening conduct was intended to place you in fear of your safety (or that is a negligent result) and gives the law-enforcement officer or district attorney grounds for criminal action (at least in New York). If he threatens to call the cops, hand him a phone. If he calls the cops, thank your lucky stars. Now you have a neutral party with a district attorney on call to be an arbiter. You are lucky, because the neighbor who does not call the cops could be thinking of taking things into his own hands (see below). On the other hand, if he has really frightened you, even without threats, or is in any way acting in what might be perceived as a threatening manner, you should call the police—do not wait for him to do it. Worried that the police won’t pay attention if it is just a phone call and it’s just swearing (“Get the hell off the air, right now!!”), with no words conveying a threat, just a menacing voice? Should you file a complaint? You could be really scared, yet lack the words or act that amounts to a threat or unwanted touching to form the basis of a complaint. Should you still file a report? If you are asking that question, you are assuming that nothing much happens when the cops get the first filing—as it lacks a criminal act. However, the mere filing means that the second time it happens, cop nostrils should flare. Yet, the ugly neighbor could now make lawsuit noises (defamation). Don’t worry too much, as the station (or the carrier) would likely win any lawsuit against you by taking the position that filing a police report fails the “publication” test and is privileged. Nonetheless, the company still winds up hiring a lawyer and defending itself in court. Thus, the question is really interesting. Here’s something to consider. There can be a number of crimes that are less than an assault. Atty. Brent H. Gourley, of Klemm & Gourley, PC, in Dothan, AL, provided information on the Alabama situation. Put briefly, in Alabama: ●

Class A misdemeanors ⫽ $2,000 fine and 1 year with the sheriff

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Class B misdemeanors ⫽ $1,000 fine and 6 months

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Class C misdemeanors ⫽ $500 fine and 90 days

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Sentence is usually suspended upon payment of the fine and good behavior.

Here are the crimes that may be involved.

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Sec. 13A-6-23. Menacing [threaten with a weapon] (a) A person commits the crime of menacing if, by physical action, he intentionally places or attempts to place another person in fear of imminent serious physical injury. (b) Menacing is a Class B misdemeanor. Sec. 13A-6-24. Reckless endangerment [usually motor vehicle, but . . .] (a) A person commits the crime of reckless endangerment if he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person. (b) Reckless endangerment is a Class A misdemeanor. Sec. 13A-11-8. Harassment or harassing communications [verbal, physical, e-mail, telephone] (a)(1) HARASSMENT—A person commits the crime of harassment if, with intent to harass, annoy, or alarm another person, he or she either: a. Strikes, shoves, kicks, or otherwise touches a person or subjects him or her to physical contact. b. Directs abusive or obscene language or makes an obscene gesture towards another person. (2) For purposes of this section, harassment shall include a threat, verbal or nonverbal, made with the intent to carry out the threat, that would cause a reasonable person who is the target of the threat to fear for his or her safety. (3) Harassment is a Class C misdemeanor. (b)(1) HARASSING COMMUNICATIONS—A person commits the crime of harassing communications if, with intent to harass or alarm another person, he or she does any of the following: a. Communicates with a person, anonymously or otherwise, by telephone, telegraph, mail, or any other form of written or electronic communication, in a manner likely to harass or cause alarm. b. Makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication. c. Telephones another person and addresses to or about such other person any lewd or obscene words or language. Nothing in this section shall apply to legitimate business telephone communications. (2) Harassing communications is a Class C misdemeanor.

17.2.3 Some Sample RFI Letters In any event, here are some sample RFI letters for you to use as a guide in responding to your jerky neighbor. After reading a few, you should have the confidence to compose an appropriate one for yourself. After the first few, you’ll see “lawyer to lawyer” letters. Don’t, please don’t, think that if you write English well you can write a lawyer’s letter. Offer these as useful examples to a lawyer you have retained. For ease of use, they are also on the CD accompanying this book. 17.2.3.1 Sample RFI Letter to a Neighbor This letter is on the CD as filename Neader RFI Letter.doc.

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Dear __________, I am really sorry that you are having problems with your motion-detecting lights picking up radio transmissions. As you know, your lights should not be doing this. If you would be willing to cooperate in some experiments, I am hopeful your interference problem could be resolved by the application of standard engineering techniques. As a good neighbor, I am willing to assist in applying these techniques to your specific situation. I do want to clarify that federal law does not require me to assist with interference problems such as the one you are experiencing, as long as our transmitter meets all applicable FCC regulations. I am confident our transmitter meets and even exceeds all regulations. The power output is always within specified limitations, and we’ve spent considerable time and money to be sure that everything is properly installed with better than average grounding and filtering. While we don’t have to help, we want to help, as we want to be a good neighbor, but it will take cooperation to cure any interference problem. I cannot do it alone. If you want help in curing your interference problem, all you have to do is call me at [Telephone Number] and, while I cannot make any promises, I will do the best that I can to help you solve the problem. I have attached some additional information regarding radiofrequency interference issues that you may find useful. However, I believe the best solution is neighborly cooperation and I await your phone call. Sincerely, Scott Neader Attachment

Here’s the attachment to Neader’s letter: Can local or state authorities or laws be involved in matters of radiofrequency interference? No. RFI matters are handled exclusively by the Federal Communications Commission (FCC). In amending the Communications Act of 1934, the Congress clearly expressed its opinion: Section 302(a) (formal citation: 47 USC §302(a)) reads, in relevant part: 47 USC §302a. Devices which interfere with radio reception SUBCHAPTER III—SPECIAL PROVISIONS RELATING TO RADIO ... (f)(2) A station that is licensed by the Commission pursuant to section 301 of this title in any radio service for the operation at issue shall not be subject to action by a State or local government under this subsection. A State or local government statute or ordinance enacted for purposes of this subsection shall identify the exemption available under this paragraph.

Furthermore, many home entertainment electronic devices, including portable telephones, bear the following required label, in accordance with 47 CFR §15.19(a)(3): This device complies with Part 15 of the FCC Rules. Operation is subject to the following two conditions: (1) This device may not cause harmful interference, and (2) this device must accept any interference received, including interference that may cause undesired operation.

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Putting it another way, there is really no such thing as a successful private lawsuit in an RFI matter. Who ya gonna call when there are RFI problems? The neighbor must complain to the Federal Communications Commission (FCC). If it would help to cool him off, he can even call the Watch Officer of the FCC Compliance and Information Bureau at 202-632-6975, 24 hours a day, 7 days a week (fax, 202-418-2812; TTY, 202-418-2989). For information on resolving problems, the FCC’s Interference Handbook is available online. Figures illustrate different TV interference problems, including CB transmitter interference. This 59-page Interference Handbook can be found at http://www.fcc.gov/ftp/Bureaus/Mass_Media/Databases/documents_ collection/1993InterferenceHandbook.pdf. Guard that URL carefully, as it is next to impossible to find using the FCC’s search engine. It includes information about equipment installation, identifying interference sources, curing interference problems, and filters. Unfortunately, the list of home electronic equipment manufacturers and telephone numbers it contains may be outdated. Would a shorter tower help? Actually, the higher the antenna, the better! The erection of a taller antenna system will have a tendency to decrease, not increase, the likelihood of television interference, as higher antenna systems, with directional arrays, are farther away from neighboring electronic devices and transmit over nearby homes. Lower antennas have a far greater likelihood of interference, as they would direct more energy toward a neighboring TV set. This is exactly the position that was taken by the FCC’s chief of the Private Radio Bureau in a letter to the Board of Zoning Appeals of Hempstead, NY (October 25, 1994): “(A)ntenna height is inversely related to the strength, in the horizontal plane, of the radio signal that serves as a catalyst for interference in susceptible home electronic equipment. It is a matter of technical fact that the higher an . . . antenna, the less likely it is that radio frequency interference will appear in home electronic equipment.”

17.2.3.2 Sample RFI Letter to a Neighbor, by Phil Kane, Esq. This is the typical TVI/RFI situation where the neighbor has refused to cooperate in resolving the problem and has started to harass your people. Remember, if you are a broadcaster, and the problem is blanketing interference, the situation is different. But, if you are a taxi company and your signals are clean, this type of format may help. This letter is on the CD as filename Kane RFI Letter.doc. Dear Mr. Neighbor: I understand that since the spring of 200n, you have alleged that your television receiver, VCR, and telephone have been receiving the radio signals from [Client, the alleged source] and that not only have you refused to apply the necessary corrective measures (filters) to your home electronic/ entertainment equipment (“HEEE”) which would reduce or eliminate the effects of that unwanted reception, but you have also been abusive to employees and have made threats of further abuse. My client is licensed to operate that station by the Federal Communications Commission (“FCC”), which has sole jurisdiction and authority in connection with any complaints of this nature. The particular problem which you are experiencing is, unfortunately, the most common complaint from the general public with which the FCC deals. FCC engineers have looked into this type of problem, its causes, and its solutions for literally decades, and their research, both in the laboratory and in the field—the homes and offices of

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folks like yourself—has shown that the overwhelming cause of the problem is the lack of effective shielding and filtering of the affected HEEE devices to prevent the interception and detection of such radio signals. Indeed, my client is able to operate HEEE devices such as television receivers, computers, and telephones in his offices without experiencing the effects you complain about. We live in an era where radio transmitters of all types—cellular radio telephones, electronic baby monitors and other types of wireless communicators, mobile radios, business and personal communications devices, as well as citizen’s band (CB) transmitters—are proliferating in the effort to bring the benefits of wireless communications to the public. This has resulted in increasing technical incompatibility with HEEE devices that were not designed with the interception resistance needed to coexist in that environment. Most people such as yourself are never aware of this sort of deficiency and the proper methods of curing it until being exposed to a nearby radio signal causes the unwanted interception. Then your natural reaction is: “I never had the problem before, why should I have to deal with it? It must be someone else’s problem.” The analogy, which has been used all over the country and for many years, is: “Why does my roof leak when it rains? It didn’t leak before it started raining.” The solution to the problem, though, is in your own hands, not my client’s. I suggest you begin your investigations with an FCC Fact Sheet at http://www.fcc.gov/cgb/ consumerfacts/interference.html. It explains the steps that have to be taken for you to restore the proper operation of your equipment. The appropriate Enforcement Bureau office may be found by looking at http://www.fcc.gov/eb/rfo/. You may also write to them at [Regional FCC Public Service Address]. My client is willing is to operate the radio transmitter upon mutual prearrangement, to see whether the things that you do are effective in restoring the proper operation of your equipment. He is not obligated to stop operation in the interim. He is not obligated to provide the necessary filters or technical repairs to your equipment, nor will he. With the above as a background, then, we insist that you cease harassing [Client] about a problem the solution to which is in your own hands, and we reserve the right to take necessary legal action to restrain such harassment should you continue to do so. Sincerely, Phil Kane Principal Attorney Communications Law Center

17.2.3.3 Sample RFI Letter to a Neighbor Who Is a Policeman, by Fred Hopengarten, Esq. This is available on the CD as filename K1VR Lawyer to Cop RFI Letter.doc. Dear Mr. Neighbor: I am an attorney with a particular interest in communications law. It is the only area in which I am active. I write to you today on behalf of [Client] located at [# Same Street]. The Concern Mr. Client has recorded, in notes made at the time, that you phoned his office during the day, and his home later that night, on November 30, 200n. In the course of a call at approximately

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6:00 p.m., you said to him that an interference problem from which you now suffer was his fault, and that if he does not stop it you would get a court order to arrest him for disturbing the peace. As you are a police officer employed by the Town of Town, Mr. Client was very concerned and asked for my help. Escalation Is Undesirable If this matter escalates, it will involve all sorts of claims by Mr. Client, based on actions you have taken in attempting to restrain the station’s First Amendment right of free speech [if a broadcaster] and attempting to deprive his company of equal protection under the law. In that case, I would advise you to retain a lawyer to defend yourself, and it would become necessary to call in Town Counsel to defend the Town, due to your role as a police officer. The matter would then become protracted and expensive for you and for the Town and is not likely to solve your essential problem. If I understand the situation correctly, you suffer from some interference. Frankly, your concerns are best solved by engineering, not litigation. A Helpful Publication The law on interference to a television set or intercom is clear. To start, I suggest that you refer to http://www.fcc.gov/cgb/consumerfacts/interference.html. The FCC has written: Interference from a radio transmitter . . . can occur, even when the radio transmitter is properly operated. One or all of the following may be a contributing factor: ●

Technical deficiencies in a radio transmitter or improper operation of the transmitter.

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Design deficiencies in the device receiving the interference (television, telephone, stereo, or AM/FM radio).

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Inadequate antenna system (rabbit ears versus a well-maintained outside antenna system).

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Distant TV or radio signal being received (referred to as fringe area reception).

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Booster amplifier installed on TV receiving antenna.

Action Steps Mr. Client is a degreed electronics engineer who has worked in the electronics industry all his life. He has had no word from other neighbors that they have problems. It is highly unlikely that the problem is with his transmitter or antennas. Furthermore, it is likely that the problem in your home can be easily remedied. By letter of December 5, 200n, Mr. Client offered written suggestions and has provided, at his own expense, some materials (0.002-µfd capacitors with alligator clips for your telephone line and snap-on filter chokes for your TV feed line) that may be of help to you. Furthermore, if you have cable TV, and the problem continues, you may contact me or Mr. Client, and we will be happy to coordinate with the local cable TV company to see what further steps can be taken. Furthermore, as I understand it, no one has yet tried any filters in your home. This step may be appropriate after you have taken the first steps Mr. Client suggested. Mr. Client’s Antenna Mr. Client has reason to believe that you have complained to the Town Building Inspection Department about the company’s antenna, perhaps in the hope that without an antenna up in the sky your problem would go away. Unfortunately, that concept is faulty. If it were true that an antenna caused the problem, which isn’t true, you would not want a low antenna (which would

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be closer to your house), but rather the highest antenna known to man (which would be farther away from your house). Let’s put it another way. If the antenna caused the problem, you’d want the antenna 5 miles up, not 85 feet up. Due to the physics of signal dispersion, each additional foot of height in the antenna actually makes the potential interfering signal increasingly weaker and less likely to present a problem. Here is an example we can all relate to: If you shine a flashlight at a wall from a distance of 1 foot, you will see a strong light in a narrow spot on that wall. Now move the flashlight back 4 feet, and any one spot on the wall will now have only 1/16th as much light, as the light disperses over a broader area and gets weaker. Any requirement to lower Mr. Client’s antenna, taken alone, would therefore actually increase any problem which you may suffer, not decrease the problem. The Zoning Bylaw As you have mentioned the zoning bylaw of the Town of Town, I examined it. The antenna system has all of the proper permits, and the subject of interference is off-limits to enforcement by the town. Use of the Town’s zoning bylaw will not reduce your interference. Your Equipment Manufacturer While I do not know which brand of equipment you use, many manufacturers of equipment provide free technical help and are anxious to aid their customers. Please check your User’s Manual for information on how to cure interference. Conclusion Officer Neighbor, it seems that you have a technical problem that is susceptible to a technical solution. I know that Mr. Client and other [broadcasters, ambulance or taxi companies, etc.] have a long and proud tradition of public service. We are willing, even anxious, to help out. I urge you, in the strongest terms, not to make a law case out of this situation. Instead, I ask you to help create a “win/win” situation here. With cooperation, you can be rid of your interference problem and Mr. Client can be relieved of his concerns about any possible action you may take. Are you willing to take a chance on cooperation? It could solve your problem and avoid a confrontation in which no one wins, except the attorney for the broadcaster, especially if awarded his fees by the Court at the conclusion of litigation. I hope that you and Mr. Client can work this thing out. If I can be of assistance in any way, on questions of engineering or law, please feel free to contact me. Sincerely, Fred Hopengarten, Esq. (Note: The policeman was never heard from again.) 17.2.3.4 Sample Lawyer’s RFI Letter to a Neighbor’s Lawyer This is available on the CD as filename K1VR Lawyer to Lawyer RFI Letter.doc. In re: Your letter to Client dated November 7, 200n Dear Atty. Robert: I represent [Client] with respect to matters of federal law governing radiofrequency interference. Mr. Client has provided me with a copy of your letter to him dated November 7, 200n. Your

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letter advised Mr. Client that “a CB tower installed on your property has caused a substantial interference with the electronics within the Neighbor’s home. This interference includes, but is not limited to, audio interference with their telephone, stereo and TV sound systems.” On behalf of Mr. and Mrs. Neighbor, you wrote: “I must respectfully request that you cease and desist from using your CB radio until you have acquired the technology necessary to stop this interference.” You advised Mr. Client that, should he not comply with your request, you have been authorized by your clients to take appropriate legal action including, but not limited to, a restraining order to stop this condition deemed a nuisance. A Federally Licensed Provider of Commercial Mobile Radio Services Mr. Client is a federally licensed Commercial Mobile Radio Services (CMRS) carrier, holding the proper licenses issued by the Federal Communications Commission (FCC). The FCC-licensed Commercial Mobile Radio Service is separate and distinct from the FCC-licensed Citizen’s Band (CB) Radio Service. The FCC has sole jurisdiction and authority in connection with any complaints of radiofrequency interference (RFI). Applicable Law Congress has preempted any state or local regulation of radiofrequency interference (RFI) pursuant to the provisions of Section 302(a) of the Communications Act of 1934, as amended. For your convenience, it reads: 47 USC §302a. Devices which interfere with radio reception SUBCHAPTER III—SPECIAL PROVISIONS RELATING TO RADIO ... (f)(2) A station that is licensed by the Commission pursuant to section 301 of this title in any radio service for the operation at issue shall not be subject to action by a State or local government under this subsection. A State or local government statute or ordinance enacted for purposes of this subsection shall identify the exemption available under this paragraph.

Furthermore, many home entertainment electronic devices, including portable telephones, bear the following required label, in accordance with 47 CFR §15.19(a)(3): This device complies with Part 15 of the FCC Rules. Operation is subject to the following two conditions: (1) This device may not cause harmful interference, and (2) this device must accept any interference received, including interference that may cause undesired operation.

The consequence of this statute and this regulation is that, there is really no such thing as a successful private lawsuit in an RFI matter. In Still v. Michaels, 791 F. Supp. 248 (USDC AZ, 1992), the Court held that the law of nuisance in the area of radiofrequency interference was preempted by the Communications Act, as it would obstruct the FCC’s ability to regulate such matters. In that case, the plaintiffs’ state law action for nuisance had been dismissed on the grounds that state courts were precluded by federal preemption from remedying an alleged private nuisance caused by interference from the operation of a radio transmitter. 166 Ariz. 403, 803 P.2d 124 (App. 1990) In Blackburn v. Doubleday Broadcasting Company, Inc., 353 N.W. 2d 550 (Minn. 1984), plaintiffs brought a nuisance action against five radio stations that broadcast from a Minneapolis building, alleging the defendants’ transmissions interfered with plaintiffs’ reception of other stations. The Minnesota Supreme Court held that the Communications Act preempted plaintiffs’ claim that defendants’ radio transmissions constituted an actionable nuisance by distorting their reception of other desired signals.

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In E.G. Helm, Jr. v. Louisville Two-Way Radio Corporation, 667 S.W. 2d 691 (Ky. 1984), the Jefferson County Police Department filed suit against a commercial radio paging service, seeking injunctive relief for interference with police communications. The police chief alleged that the interference was a dangerous nuisance and threatened the public safety. The Kentucky Supreme Court held that Congress and the federal government were the sole regulators of radio interference, and that a common law nuisance action was not sufficient to confer jurisdiction on the state court. Additionally, the Illinois Supreme Court has held that a claim for interference with television reception simply does not state a cause of action for nuisance. People ex rel. Hoogasian v. Sears, Roebuck and Co., 52 Ill. 2d 301 (1972). See also Public Service Co. of New Mexico v. Catron, 98 N. M. 134 (1982) (holding that a claim that construction of a high tension transmission line would cause interference to television and radio reception failed to state a cause of action for nuisance). State law or state action that requires anyone to cease operations or incur penalties as a consequence of radio interference have been entirely preempted by Congress. This position has been confirmed repeatedly by the courts. See, for example, Broyde v. Gotham Tower, 13 F.3d 994 (6th Cir. 1994). For an excellent discussion, and a wealth of cases, see Southwestern Bell Wireless, Inc. v. Johnson County Board of County Commissioners, 199 F. 3d 1185 (10th Cir. 1999), cert. denied, 530 U.S. 1204 (2000), http://www.ca10.uscourts.gov/opinions/98/98-3264.pdf. Another well-written and thorough discussion states plainly: “We conclude that allowing local zoning authorities to condition construction and use permits on any requirement to eliminate or remedy RF interference ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” Freeman v. Burlington Broadcasters, Inc., 204 F. 3d 311 (2d Cir. 2000), cert. denied, 531 U.S. 917 (2000), http://www.fcc.gov/ogc/documents/ opinions/2000/97-9141.doc. Finally, you should be informed that the solution is in the hands of the complainant. A Helpful Publication For information on resolving problems, the FCC’s Interference Handbook is available online. Figures illustrate different TV interference problems, including CB transmitter interference. This 59-page Interference Handbook can be found at http://www.fcc.gov/ftp/Bureaus/Mass_ Media/Databases/documents_collection/1993InterferenceHandbook.pdf. The FCC has written: “Telephones, stereos, computers, electronic organs and home intercom systems can receive interference from nearby radio transmitters. When this happens, the device improperly functions as a radio receiver. Proper shielding or filtering can eliminate such interference.” The FCC clearly puts the responsibility for interference to home electronics interference devices on the manufacturer. Most manufacturers respond appropriately if contacted about consumer RFI. Technical Solution and Responsibility We live in an era where radio transmitters of all types—cell phones, electronic baby monitors and other types of wireless communications, mobile radios, business and personal communications devices, and services such as citizens band and amateur radio transmitters— are proliferating in the effort to bring the benefits of wireless communications to the public. This has resulted in increasing technical incompatibility with home electronic/entertainment devices that have not been designed with the interception resistance needed to coexist in that environment.

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Most people, such as your client, are never aware of this sort of deficiency and the proper methods of curing it until exposure to a nearby radio signal results in the unwanted interception. Your client’s reaction is natural: “I never had the problem before. Why should I have to deal with it?” The analogy, which has been used for years, is: “Why does my roof leak when it rains? It didn’t leak before it started raining.” The solution to the problem, however, is in the hands of your client, not mine. My client would be willing to operate the radio transmitter by mutual prearrangement, for your client to see if there are steps that may be effective in restoring the proper operation of your client’s equipment. Nonetheless, my client is not obligated to stop operation in the interim. If there is nothing further my client can do thereafter, he is not obligated to provide the necessary filters or perform the technical repairs to your client’s equipment. Conclusion In conclusion, I refer you to an excellent article entitled “The Ghost in the Computer: Radio Frequency Interference and the Doctrine of Federal Preemption” (R. Brock et al., Computer Law Review and Technology Journal, 1999(1), Fall 1998–Spring 1999; http://www.smu.edu/stlr/ articles/1999/spring/Brock.pdf). Section V, Conclusion, of that article reads: Although home electronic equipment is immersed in a sea of radio frequency energy from myriad sources, most of it functions as intended. The FCC has the authority to virtually eliminate RFI problems by requiring manufacturers to implement design features and filtering that would make all home electronics equipment “bullet proof.” Instead, it has chosen to require such equipment to accept any interference it receives, while relying on the marketplace to compel manufacturers to produce serviceable merchandise. Historically, local authorities have attempted to regulate RFI as a common-law nuisance or trespass. But as courts have consistently concluded, Congress has completely preempted the field of RFI regulation, thus precluding local regulation and state-law claims. ... City, county, and private attorneys who understand how federal preemption applies in RFI matters can prevent potential litigants, beset by RFI problems, from filing ineffective lawsuits. Attorneys should also help their clients to understand that under current law, RFI is properly viewed as the equipment’s inability to reject unwanted signals, not as transmitter interference. The focus of eliminating RFI can then properly shift to improving the filtering capabilities of home electronic equipment. Unless the law changes, this approach is the only reliable method of exorcizing the ghost in the computer.

Although the law does not require my client to “solve” your client’s problem, I believe that he would be willing, even anxious, to help out. I urge you, in the strongest terms, not to make a law case out of this situation. Instead, I ask you to help create a “win/win” situation here. Cooperation could solve Mr. Neighbor’s problem and avoid a confrontation in which no one wins, except the attorney for the FCC licensee who is awarded his fees by the Court at the conclusion of frivolous litigation. Sincerely, Fred Hopengarten, Esq.

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17.2.4 TVI/RFI Complaint by a Neighbor with a Gun (Note: Again, a much deserved “thank you” is due to Greg Becker, J.D., Ph.D., NA2N, and a former policeman, for advice he gave me contained in this section.) The author once received a 10 p.m. phone call from a very shaken client. It seems that a neighbor had just come calling, carrying a gun. The essence of the message delivered by the neighbor was: “Shut that damn thing off or I’ll use this.” Was this a direct threat against the life or property of the client? I don’t know, and I didn’t care. I advised him to file a written report with his town’s police department right then, by leaving the house and driving down to the station. And that’s what I’d advise you. Don’t be a namby-pamby, filled with “I don’t want to cause hard feelings or make things more difficult by talking to the police” crap. If your neighbor was concerned about hard feelings or making things more difficult, chances are he would have stayed in bed and would not have presented himself at your front door. However, there are two schools of thought about this situation. The Hopengarten school of thought is that by driving to the police department you are removing yourself from the physical situation. It is hard to get knifed or shot if you aren’t there. On the other hand, Greg Becker—and recall that he is a former policeman—would call the police and have them come to your house. By bringing a marked unit to your house, you make a visible statement to the neighbor that you will not tolerate that behavior and give the officers the opportunity to deal with the situation right then and there (that is, arrest, chat, etc.). Nonetheless, when you place the 911 call, say that you are frightened for your safety. Now it’s on tape. When the patrol car arrives, remember to mention that you are “frightened for your safety,” and make sure it gets written down. And, if you follow my advice rather than Greg’s, you should still tell the police at the station that you are “frightened for your safety.” It may sound like a little thing, but it gives law enforcement a bigger stick should it become necessary to do more than “speak softly.” Threats with guns are just not neighborly. They amount to a criminal offense, not just a civil concern. That’s what the police are for: To protect and defend. In the “neighbor with gun” case mentioned above, the police took the issue seriously. In essence, they told the offending neighbor, “We don’t care about your interference. Don’t do that.” After the police report was filed, the neighbor was never heard from again and moved a little while later. This does not mean that the client was not shaken. Both the client and his wife didn’t sleep easily for a while. But, if I had to do it again, I’d escalate again. Start a paper trail immediately by filing a police report. By the way, don’t say or write: “He threatened me.” That’s a conclusion. Report the words of the threat or your best memory of what was said. If he said “Cut it out or I’ll use my trusty rifle,” report those words. And, if it is true, be sure to say: “I’m frightened and concerned for my safety.” Those words, if not overplayed, will normally make a police department jump. Someone who shows up at your door with a gun should be in handcuffs, at least for criminal trespass, menacing, and potentially some weapons charges. Let the judge sort it out when everything has calmed

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down. You can’t “un-arrest” someone, but it’s much more difficult to resolve the situation with the rest of your family sitting in the hospital (or, God forbid, in the funeral parlor) saying “If only we’d called the police….” My view of the world is that threats of physical violence are not to be ignored. Whether the caller mentioned a gun or another weapon—and even if the caller did not mention a weapon—if you felt threatened, you should take action. Call the police. This is not 1835, and this is not the Wild West.

17.3 The CB Interference Statute There is always the possibility that a law enforcement official may believe that there is a federal statute that has changed things. Public Law 106–521, an act entitled “State and Local Enforcement of Federal Communications Commission regulations on Use of Citizens Band Radio Equipment” amends the Communications Act of 1934, creating 47 USC §302a (f)(1). This law makes it legal for a state or local government to enact a statute or ordinance prohibiting unauthorized operation of citizens band radio equipment from 24 to 35 MHz. But this is a very limited authority. Such a statute is sometimes called “an enabling statute.” This means that it doesn’t immediately empower the police to assume jurisdiction in the area of RFI, where once only the FCC could act. A state or local government must still first create legislation under this statute, and the legislation “shall identify the exemption” under which the local law is authorized. So even the local law must tell the police which transmitters are exempt from the general prohibition against action by local authorities. Note that, absent a requirement for type approval, an appropriately licensed transmitter could, indeed, use converted CB gear on a licensed frequency, even if such a local statute or ordinance exists, because the transmission would not be “unauthorized.” However, as most law enforcement officers cannot be expected to know the difference between citizens band radio and other radios, you may need to be informed about the following law, signed by President Clinton in late 2000, just before the end of his term. SECTION 302a OF THE COMMUNICATIONS ACT OF 1934 SEC. 302a. DEVICES WHICH INTERFERE WITH RADIO RECEPTION. (f)(1) Except as provided in paragraph (2), a State or local government may enact a statute or ordinance that prohibits a violation of the following regulations of the Commission under this section: (A) A regulation that prohibits a use of citizens band radio equipment not authorized by the Commission. (B) A regulation that prohibits the unauthorized operation of citizens band radio equipment on a frequency between 24 MHz and 35 MHz. (2) A station that is licensed by the Commission pursuant to section 301 in any radio service for the operation at issue shall not be subject to action by a State or local government under this subsection. A State or local government statute or ordinance enacted for purposes of this subsection shall identify the exemption available under this paragraph. (3) The Commission shall provide technical guidance to State and local governments regarding the detection and determination of violations of the regulations specified in paragraph (1).

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For most readers, the heart of the statute is found at 47 USC §302a(f)(2): “A station that is licensed by the Commission pursuant to section 301 in any radio service for the operation at issue shall not be subject to action by a State or local government under this subsection.” You are exempt. You are not required to produce your radio license in order to be exempt.

17.4 The Renewal Occasionally you find a town that requires renewal of the Special Exception or Special Use Permit you fought so hard to win. The renewal may be required by the general bylaws of the town or the zoning bylaw, or it may be an invention of the permit-granting authority (this means that they just made up the requirement, all by themselves). A renewal requirement is very dangerous and must be treated with great respect, taking every opportunity to soften its requirements while trying to eliminate the periodicity or to elongate the period. A renewal is basically bad public policy, because as time passes and the tower becomes part of the neighborhood, it will be forgotten by the majority of inhabitants and will never be noticed by passersby. Why stir up passions and animosities unnecessarily? Should someone on the Board say that a renewal is necessary because of a concern for safety, there is a simple reply: “This is construction like all other construction. You don’t require renewals on a Building

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Permit for a freestanding garage, do you?” If a neighbor really fears that your structure may become dangerous, it can be treated like any other dangerous construction. Using his police power (which is why most Building Inspectors are issued a badge), a Building Inspector may come onto your property without your permission if she or he has a reason to believe there is a danger to the public’s health or safety. Furthermore, if the Building Inspector does find a danger, and the owner doesn’t correct the problem, the Building Inspector has the power to put a lien against the property to pay for repair or removal. The town always gets paid back, because the property cannot be sold without clearing that lien. A mortgage company or bank would see to that. Thus, a renewal is totally unnecessary.

17.4.1 Frequency of Renewal There are many different towns and many different Boards, with many different applicants. Unless there is something different about your state (and there are states where Variances may be conditioned and thus limited to a period of time) a Variance is permanent and runs with the land. This means that you can record it in your local registry of deeds and any subsequent owner of the land may take advantage of the Variance. However, a Special Use Permit may be made personal—to you or the corporation. When you are no longer there to use that permit, it could expire. The real story is always a matter of state law. It is not unusual to find Boards that take the position that the Town must be protected. One of the ways that such Boards seek to protect the town is by not issuing permanent Special Use Permits for antennasupport structures. Of course, this begs the very real question: “From what are they protecting the town once a permit is granted?” Nonetheless, as a form of harassment—because no other logical explanation can be put forward for renewal requirements except to hasten the removal of a support structure by harassing the structure’s owner—some towns will add periodic renewal requirements to a Special Permit. In many cases they do so because they can, not because it makes any sense. Many such towns don’t think the process through completely. If your ordinance, or Board, absolutely, positively insists that a Special Use Permit for an antennasupport structure must have periodic renewals, there are several strategies, some with variations, you might suggest to the Board. Expressed briefly, they are: ●

One year, then permanent

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Three years, then permanent

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Some years, then to coincide with license renewal

17.4.1.1 One Year, Then Permanent In this scenario, the Board issues a one-year permit, then reexamines the issue. Actually, this is silly. Things may not yet have gelled in a year. Assume that 20 days, or some number of days, must pass before the Special Use Permit becomes valid, to allow the passing of the appeal deadline. Then one applies to the Building Inspector for a Building Permit, which has a time frame all its own. Only after the grant of a Building Permit can construction actually begin. If construction is interrupted by bad

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weather (more properly known as winter in northern climates), the structure may not be up, populated by antennas, and eligible for a Certificate of Completion for six to nine months. Thus, a one-year period before renewal is really bad public policy, because you could wind up in a situation where it is time to renew a Special Permit before construction has concluded. 17.4.1.2 Three Years, Then Permanent If a Board feels compelled to revisit the situation after construction, allowing three years after the grant of a Special Use Permit makes more sense (four or five years would make even more sense). This time period allows for construction of the antenna system and a period of time for grass to grow back around the base of the structure (where it may have been bothered by the pouring of concrete). It also allows time for neighborhood hotheads to cool off. Presentations to the Board, if there are any, will be much more levelheaded in three or more years, and they can be accompanied by photographs of the actual installation. However, there is little or no benefit to further hearings after this “post-construction” hearing. Thereafter, the only matters are matters of safety, because no matter what changes may come in zoning bylaws, the antenna-support structure has achieved the status of a “prior existing structure” (even if it is then nonconforming!). There are Boards that have claimed that they cannot and will not delegate matters of public safety to the Building Inspector. This is total nonsense, since the job of the Building Inspector is to be the person to whom matters of public safety arising out of construction are delegated. After the hearing (three, four, or five years), the renewal should be made permanent. Well, actually not permanent, as that would then be a Variance. In this case, permanent really means that the permit should expire when the FCC licensee, or a successor licensee, no longer has a substantial ownership and use interest, direct or beneficial, in the land. Why is it necessary to write such a convoluted expiration date? For one thing, the FCC licensee may not now, or at some time in the future, be the owner of the property. For example, ownership of the property may be in the name of a landlord or a sister corporation. For another thing, make sure the Board does not write that the permit will expire when the business is no longer domiciled there, since domicile is a very technical word that can sometimes involve counting the number of nights someone slept somewhere, or perhaps a studio-to-transmitter link (STL) was installed and the studio moved to another town! As long as the antenna has not moved, it is hard to conceive of a rational reason for the expiration of a Special Use Permit. 17.4.1.3 A Period of Years, Then to Coincide with License Renewal If the Board just cannot live with itself without insisting on a renewal, it would be rational and good public policy to make the renewal of the Special Permit coincide with the FCC license renewal. At least license renewal would prompt someone (even if it is your successor) to remember a looming renewal deadline. A possible problem with this suggestion, but only from the perspective of the Board, is the arithmetic possibility that an FCC license could be renewed and then the Special Use Permit granted, so that the Special Use Permit would not come up for review for a long time. To the Board, this may seem like too much time before they review the situation.

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From the perspective of the licensee/permittee, who would rather just get the Special Use Permit and have that end the matter, the challenge of a renewal is still presented. However, except in the case where the renewal would be presented in less than three years (which, as previously expressed, is just too short), a better solution is to agree to a renewal process in three to five years and thereafter on renewal of the FCC license. This would be reasonable public-policy thinking—if only licenses were stable. The problem is: “What if the call sign is changed and the license clock begins anew?” Ah, well. There is no doubt a compromise somewhere out there that you can make. Make a good suggestion to your Board, and include it in your suggested decision!

17.4.2 What if You’re Stuck with a Renewal? If, despite your best efforts, you find yourself stuck with a renewal requirement, the best thing you can do is to make it easy for the Board to renew without sliding off the rails. And how do you make it easy? You provide the Board all the information that it needs to renew. Furthermore, you do this with respect for the Board, by being formal in your request. You should help them find your file by citing the file or case number, if one was ever assigned. You should provide, in advance, the text of the notice to be published in the local newspaper, so that when the legal notice appears your neighbors won’t think you are up to something new or different. You should provide the correct language in a suggested renewal decision. Never forget that the Board is made up of volunteers, and the Secretary to the Board is not a lawyer. The facts may be elusive or few may remember what you are talking about. Your permit may have been granted before the person assigned to write up your renewal grant was ever named to the Board. Mistakes are easily made, so it is your job to prevent such mistakes by doing their work for them. The following documents appear on the CD enclosed with this book, ready for you to modify. They are presented here with commentary in italics. See filename Late Renewal Request Letter.doc.

17.4.3 The Request for Renewal If a question arises, be sure to give the Secretary to the Board many different ways to get in touch with you. It can be useful to include an e-mail address, a fax number (if possible), and your work telephone number, in case the Secretary wants to get in touch with you and ask a question. The example below comes out of an amateur radio Special Use Permit renewal, but a commercial situation would require comparable wording. Renewal requirements often include “bracket dates”—no sooner than three months before expiration and no later than 30 days before expiration (to allow for advertising and scheduling on the agenda for the next available hearing).

December 10, 200n Board of Appeals Town of Lincoln Town Offices

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P.O. Box 353 Lincoln, MA 01773 To the Board: On February 22, 1984, the Massachusetts Appeals Court issued its opinion in Fred Hopengarten v. Board of Appeals of Lincoln, 17 Mass. App. Ct. 1006 (1984), the case involving my application for a Special Permit to erect a noncommercial amateur radio antenna-support structure at my home at Six Willarch Road. With the expiration of the appeal period occurring 20 days later, the effective date of the permit granted in this matter was March 14, 1984. [Note: Sometimes it can be tricky to figure out exactly when the permit comes up for renewal. You cannot rely on the Board to spend the time to figure this out. This is especially true because the Board’s Secretary may forget to include the appeal period, yet the permit may specify that the permit is “valid for 5 years from the effective date” and not the date on the decision.] The original permit granted by the Board of Appeals dated April 8, 1981, reads, in relevant part: “Said permit shall be renewed automatically for successive three-year periods provided that a written request for renewal is made to the Board of Appeals by Petitioner for such renewal not less than three (3) months prior to the expiration of the then-existing three-year period.” Thus, I write to request the automatic renewal of the Special Permit granted in this matter for this existing antenna-support structure. No objections to automatic renewal were filed in 1986, 1990, 1993, or 1996, when on each occasion this permit was automatically renewed. I enclose a check in the appropriate amount. As a convenience to the Board, I enclose suggested wording for the decision. [Note: In renewal situations, keep telling everyone concerned that this is for an existing structure. Once on a roll, remind the Board that there is no need to get excited. Tell them, effectively, that they need not tax their brains. Don’t forget any required payment, for the process and for the legal advertising.] Sincerely, Fred Hopengarten Enc:

Check; suggested decision [The Suggested Decision] TOWN OF LINCOLN Middlesex County, Massachusetts Town Offices P.O. Box 353 Lincoln Center, MA 01773 781-259-2607 BOARD OF APPEALS In the Matter of AUTOMATIC RENEWAL OF SPECIAL PERMIT FRED HOPENGARTEN

WHEREAS, the Petitioner has, within the required time period, requested in writing that the Special Permit granted by the Board of Appeals on April 8, 1981 (effective date March 14, 1984,

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the “Special Permit”) be renewed automatically for a period of three (3) years pursuant to the terms of the Special Permit; WHEREAS, public notice in connection with said request has been given as required by law; NOW, THEREFORE, said Special Permit is hereby extended until March 14, 2002, subject to being further renewed automatically thereafter in accordance with the terms of the Special Permit. The permit herein granted is personal to the owner and expires only if the petitioner ceases to have a substantial ownership and use interest, direct or beneficial, in his present land. By: Chairman Board of Appeals Date: To: Nancy Zuelke, Clerk, Board of Appeals

From: Fred Hopengarten Date: December 10, 1998 For your convenience, I found the notice you prepared in 1989 for publication, which has been used subsequently. Its wording is correct, and we agree on it. BOARD OF APPEALS The Board of Appeals of the Town of Lincoln hereby gives notice that the SPECIAL PERMIT TO MAINTAIN AN AMATEUR RADIO TOWER now held by FRED HOPENGARTEN, SIX WILLARCH ROAD, will be renewed for a period of three years unless an objection, in writing, citing grounds under Section 6.2(f), is received. Any such objection should be filed with the Clerk of the Board of Appeals, in writing, no later than January 6, 2001. The hearing date for renewal is February 6, 2001. Nancy Zuelke, Clerk Board of Appeals

17.4.4 Late to Renew? Let’s face it. Humans are imperfect, and radio has its share of imperfect humans, too. Let’s say you somehow forget to renew a permit, if renewal is required. The usual questions in this situation are: ●

Should I not bring it to their attention and just submit the application and let them worry about whether the late submission is a problem? (No.)

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Should I make a big thing of it? (Don’t be an idiot.)

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Should I at least offer an excuse, such as “I was out of town”? (Yes, if it is the truth.)

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Should I ask the Board to remove the renewal requirement? (Yes. The worst thing they can do is say no, in which case you are where you were already.) How do I handle it?

There is likely to be at least one lawyer on the Board of Appeals (or whatever the Board is called). Lawyers may not know anything about antenna-support structures, but they love deadlines, definitions,

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and distances. Those are things they can understand. The proper thing is to ask for “an enlargement of time to file for renewal.” In addition, since you are back in front of the dreaded Board anyway, now is your chance to ask for removal of a condition in the permit that you don’t like, that being the requirement for renewal. If they don’t grant it, ask again next time! Here’s the gist of your application letter (filename Late Renewal Request Letter.doc on the CD):

Ladies and Gentlemen: This Special Permit was originally granted by decision dated __________, 200n, and was for a term of five years. By its terms, it requires renewal. Construction began on [Date] [or, “in the month of ___”] and a Certificate of Completion dated _______, 200n, has been received. See Exhibit A. This is a motion for an enlargement of time to file for renewal, a petition to renew the Special Permit, and a motion to remove the renewal requirement. [Note to the reader: If you are convinced they will never remove the renewal requirement, ask that it be extended to 10 years, or to coincide with the renewal date of your FCC license.] With respect to the motion for an enlargement of time, I apologize to the Board for failure to meet the time requirement, but please note that I’ve been traveling for business three of the past four weeks. With respect to the last motion, to remove the renewal requirement, please note that: ●

Whereas the Board may not have had a clear idea of the appearance and visibility of the proposed antenna-support structure when the application was first submitted, the structure has been up for more than five years now. The predictions and consequences envisioned by opponents have not come to pass, lessening the need for supervision.

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No change in the construction of the antenna-support structure is contemplated and, with or without a renewal process, a change in the structure would trigger a new hearing anyway.

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With respect to any questions of safety, the Building Inspector retains his right of entry to inspect for safety at any time under his police power.

●

Should the antenna-support structure remain after it is no longer in use, with or without a renewal process, it puts the property at risk during any sale, since the cost of the Town’s removal of the structure would become a lien on the property—a very effective and selfenforcing protection for the town.

I ask for a hearing as soon as your calendar permits. Respectfully submitted,

You have now created a written record, which could be useful if a nasty neighbor ever makes an issue of it. Most Boards will either grant the enlargement or ignore the motion for enlargement because granting renewal subsumes the procedural question of the filing deadline—making the question go away.

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As a convenience to the Board, and because you are a good guy, you may also wish to include the suggested wording for the renewal: Board of Appeals Renewal of Special Permit In the Matter of KOKOKO WHEREAS, the Petitioner has, within the required time period [alternative: after a request for and the grant of an enlargement of time to file], requested in writing that the Special Permit granted by the Board of Appeals on April 8, 1999 (effective date April 28, 1999, the “Special Permit”) be renewed for a period of five (5) years or more pursuant to the terms of the Special Permit, and; WHEREAS, no material change in the construction of the antenna-support structure is contemplated and a material change in the structure would require a hearing anyway, and; WHEREAS, with respect to any question of safety, the Building Inspector retains a right of entry to inspect for safety at any time under the police power of that office; NOW, THEREFORE, said Special Permit is hereby extended and shall expire when Petitioner no longer has a substantial ownership and use interest, direct or beneficial, in the land [alternative: when it is no longer in an amateur radio use]. Should the antenna-support structure remain thereafter, it may be removed by the Town at the expense of the landowner, with the cost of removal of the structure eligible to become a lien on the property. By: Chairman Board of Appeals Date: _____________________

17.4.5 Bond to Guarantee Removal The same principles hold for a bond to guarantee removal. The occasional Town Planner will say: “We need a bond to protect the town and guarantee removal.” There is a simple, and self-enforcing mechanism that accomplishes the same thing without much paperwork or cost. Make the Special Use Permit personal to the entity that applies for it, or any successor licensed entity using the structure at the property. If the property is sold and the successor does not apply for a continuation of the permit within two years, the permit will then expire. The structure is still subject to removal by the town under police power and subject to a lien on the house and land to pay for that removal. That is a painful and unnecessary rigmarole, but acceptable, because it really doesn’t require anything more than removal someday—this is easy because there is an active market for antenna-support structures, even those that are still vertical. For small towers, the usual terms are: “Take it down and it is yours.” On the other hand, I once saw a bylaw that required a cash bond to guarantee removal. While totally unnecessary for all the reasons cited above, the proper way to approach this is to suggest that the proper cash bond is $50, or just enough to place the ad in the right newspaper or on eBay. You can also buy or sell your tower items online at no additional cost by going to http://groups.yahoo.com/group/ Tower-stuff4sale/. This website is a Yahoo finance group that posts your tower items online. You can add pictures and descriptions of the product that you intend to sell.

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Post-Construction Issues

If you’ve ever thought that “it’s over when it’s over,” you’re wrong. It’s only over when you’ve sold, cashed the check, and paid the taxes. Then it’s over—for you. Remember back when you applied for the permit? You applied “to build and maintain” the structure. Now it is time to talk about some of those “maintain” issues. What you have now is a steel structure in a highly regulated government environment, outdoors in the weather. For a really good and useful paper delivered by Thomas J. Hoenninger, PE, of Stainless, LLC, at the 2005 NAB Show, see “Tips on Analyzing, Modifying, and Maintaining Guyed Broadcast Towers (http://stainlessllc.com/Resources/NAB2005_Paper.pdf).

18.1 Fencing By the way, if you learn nothing else from this chapter, learn this: You must keep the fence well maintained and locked. The Federal Communications Commission (FCC) routinely fines antenna structure owners, as well as tenants, for fence violations, as demonstrated by the following two articles. September 11, 2007 FCC Cuts No Slack on Fines—Temporarily Unfenced Tower, Expired STA, Former Owner—All Draw Fines The FCC today issued three orders imposing fines on broadcasters—cutting no slack to anyone. These cases demonstrate how important strict compliance with all FCC rules is to avoid fines before the current Commission. The first decision imposed a fine of $2800 on a broadcaster for having an unfenced tower—where the broadcaster claimed that the fence was temporarily removed to facilitate the clearing of brush as required by local authorities to remove a potential fire hazard. While the FCC seemed to recognize that the fence removal was temporary, and that it was missing for only a few weeks while weed killer was being applied at the site, the Commission still imposed the fine—requiring that access to an AM tower always be restricted, prohibiting open access even for a short period. Source: http://www.broadcastlawblog.com/archives/cat-tower-issues.html Decision: http://fjallfoss/fcc.gov/edocs_public/attachmatch/DA-07-3870A1.pdf

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Chapter 18 October 8, 2006 AM Tower Fencing Requirements Cannot Be Delegated In a decision released Friday, the FCC’s Enforcement Bureau imposed a fine of $7000 on a station for violation of Section 73.49 of the Rules, requiring AM station towers with the potential for RF radiation at their base to be completely enclosed within a fence or other secure enclosure. What was notable about this decision is that the FCC rejected claims that the station should not be fined because it did not own the tower. The Enforcement Bureau found that Section 73.49 imposed a duty on AM licensees, not on tower owners. Thus, the duty to fence the tower is one that the licensee is responsible for meeting, even if some other party owns the tower. The FCC noted that for all other towers, the primary duty for maintenance and repair of a tower is on the antenna structure owner, but even then the FCC imposes a secondary duty on the licensee to make sure that all legal obligations are being met. While the FCC left for another day the issue of what would happen if a licensee did not meet that secondary duty in some case not involving an AM station, they made clear that, for AM stations, the licensee cannot delegate the responsibility for the fencing obligation. Source: http://www.broadcastlawblog.com/archives/cat-tower-issues.html Decision: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-06-1978A1.pdf

18.2 Damage Repair There is always the possibility that, for some reason, the tower has been damaged. Perhaps a crane hit it. Perhaps a big wind caught a dish and kinked a tower leg. Whatever the cause, let’s assume that you are faced with the need to do a repair on the structure. If it is an emergency, just do it; but be sure to do the “right thing.” That’s my advice. I also give similar advice to physicians who are worried. Other parties, the courts, indeed the whole world will think better of you if you are trying to do the right thing, especially if the current situation endangers anyone or a nearby structure. Physicians have “Good Samaritan” laws to protect them. You may not, but doing the right thing, doing something that would make your Sunday School teacher proud—that will always be a good strategy. However, there are two schools of thought on a nonemergency repair.

18.2.1 Don’t Tell Anyone? If you try a post-construction repair without a permit, there is a strong likelihood that someone will find out about it. Perhaps the initial damage was the subject of a local news story. Perhaps the crew of professional erectors brought in to do the repair is staying in a nearby motel. Perhaps someone will see humans high in the sky, with ropes, on your tower and start asking questions. Remember, there is a high likelihood that your tower is visible from somewhere, especially if it was tall enough in the first place. Once the repair crew has been spotted, someone is going to start asking the Building Inspector: “What’s going on over at the KOKOKO tower?” (Why would someone ask the Building Inspector?

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Because it is supposed that he knows everything that is going on around town.) If the Building Inspector or Zoning Administrator doesn’t know, he’ll jump in his car or truck (the one with the town seal on the sides) and come by to visit. A Building Inspector (BI) or Code Enforcement Officer (CEO) or Zoning Enforcement Officer (ZEO) or Zoning Administrator (ZA) has many of the powers of a police officer. While few carry guns, almost all can call the Police Department and get a police officer to accompany them into unfriendly situations. So, now a Zoning Enforcement Officer shows up, having driven over your driveway. As a law enforcement officer, he is not trespassing. Trespassing involves coming onto the land without permission or authority. The BI/CEO/ZEO/ZA has authority. Upon arrival, the first thing that the ZA says is: “Hi, what’s going on here? Do you have a Building Permit?” Things could go downhill from there. The erectors, who have seen this movie before, either mumble something about a minor repair or tell the ZA to call the station. Helpful as ever, they may even offer a phone to the ZA to make the call. Now your trouble is really getting underway. The next thing you know, a stop work order has been issued. The erectors leave town and send you a bill. (Has anyone ever noticed that this always happens just before winter sets in and further work becomes even more difficult, expensive, or even impossible?) Management has to hire a lawyer. No one is pleased with the guy who went ahead without permission. Remember, even if you were only replacing the roofing shingles on a garage, a Building Permit has to be pulled.

18.2.2 Apply Formally Okay, you have a problem. So, you find the Building Inspector and chat it over. If he says: “Go ahead, I don’t mind, it’s maintenance,” you should go ahead. Nonetheless, it would be better if you got a permit, because of the “oh, by the way” (OBTW) problem. What’s an OBTW problem? That’s the general manager who discovers that you’ve got a crew coming and decides that this is the perfect time to install a link to a new bureau in the second-largest town in the county. Whatever the specifics, it means something new is going up, and you won’t have a permit. It’s always better to wear the white hat and have the permit. This is especially true 20 (or 2!) years later when the station is about to be sold and the buyer’s “due diligence” effort discovers an STL (studio-totransmitter link) without a permit. Even if you don’t add anything up in the sky, and you are only doing a repair to a damaged steel member or bracket, checking with the Building Inspector in advance is a good practice.

18.3 Strengthening This chapter began with the concept of a damage repair. Let’s examine a different scenario, however. What if you want to add antennas for which your present tower is not strong enough? You might be

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surprised at what can be done without taking down and replacing the tower. You may also have good reason to avoid taking down the tower, perhaps having to do with the fact that, in the intervening years, you’ve become a “nonconforming use.” In land use law, there is a general trend toward eliminating nonconforming uses. That’s why it is typical for the law to forbid the rebuilding of a nonconforming use (a use that may have once been legal to construct but is no longer legal to construct in that zone) if it is not rebuilt within a year of two after it comes down. Certainly, if a tower is seriously damaged, and you want to erect a replacement elsewhere on the lot (perhaps trying to keep the existing antennas on the air while you construct the replacement), you will need to consult the laws of your state. Here is a typical statute, this time from New Hampshire:

NH RSA 674:19 Applicability of Zoning Ordinance A zoning ordinance adopted under RSA 674:16 shall not apply to existing structures or to the existing use of any building. It shall apply to any alteration of a building for use for a purpose or in a manner which is substantially different from the use to which it was put before alteration.

18.3.1 So What Does This Say? It says that if you have an existing structure, you can repair it and the new zoning law adopted by the town does not apply. But, if you intend to alter a building to put it into a different use or the alteration is “substantially different” (which is defined, by the way, for all practical purposes, by the Board you will face), then the new zoning bylaw applies (which will no doubt make your life difficult), and you are not “grandfathered.” Why is it expected that the new zoning bylaw will make your life difficult? Because that was the purpose of the bylaw. For example, the new bylaw may require that the tower be rebuilt so as to accommodate co-location for additional wireless communications facilities, so as to reduce the total number of towers in town.

18.4 Additional Antennas 18.4.1 Replacing/Reinforcing the Tower As mentioned above, if you wish to avoid replacing the tower, you might want to consider strengthening. No doubt there is more than one firm qualified to strengthen a tower. But, if you haven’t got any good ideas as to how it is done, see http://www.tower-technologies.com/Reinforce.htm. Figures 18.1 and 18.2 provide some examples of what strengthening can look like.

18.4.2 Prior Existing Conforming Use If the bylaw has not changed and you want to rebuild or add to the existing antenna-support structure, you’ve pretty much got no problem. However, this process needs to be as efficient, professional, and well documented as the application. There may well be more to the story, but if there isn’t we

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Figure 18.1 An example of tower reinforcement. The lighter-colored supports and clamps were added to strengthen the tower. (Photograph courtesy of Broadcast Tower Technologies, Inc.)

don’t need to look any farther than the KROY radio station in Sacramento. When the tower fell in a windstorm in 2001, the station was denied a permit to rebuild due to factors such as not being compatible for the neighborhood and a reportedly difficult rapport with neighbors (as well as some airport issues). This reinforces my suggestion to maintain a positive relationship with your neighbors and planning commission. For KROY, this should have been as simple as mowing the lawn and maintaining the property. Read filename KROY Tower-losing a rebuild case.pdf on the CD. It took a while, and a lot of negotiating, to rebuild that tower, but it did eventually get rebuilt on the spot.

18.4.3 Prior Existing Nonconforming Use If the bylaw has changed, it is an important factor, as you can see from the above New Hampshire statute. First, try to find a statute in your state that is comparable to New Hampshire’s and claim you are “grandfathered” because you really aren’t changing the use. Then, assuming the use was as a telecommunications tower in the first place, and it will continue to be a telecommunications tower, you get to argue that the replacement tower or an alteration of the existing tower is also “grandfathered.” Some people might think it is harder, but it is not impossible, to argue that replacing a guyed Rohn 25 tower having a 12-inch face with a self-supporting Sabre tower having a 19-foot face at the base is not a substantially different use. After all, as mentioned above, the use (to support telecommunications antennas) has not changed. That is the key to the discussion. “It was a radio tower before. It is a radio tower now. Nothing has changed!”

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Figure 18.2 A tower that has been reinforced by wrapping the original tubes with larger tubes. (Photograph courtesy of Broadcast Tower Technologies, Inc.)

18.5 New Bylaws The one thing you should be wary of, however, is that a tower erected before 1996 is likely to have a new issue with which to contend. The Communications Act of 1996, which ushered in the cellular telephone age, changed the game. Many towns wrote new chapters to their bylaws. You’ll have to read

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the bylaw to see if it affects a broadcast tower. Start with the definitions section and look for “tower” or “telecommunications.” After that, look to see if any types of towers are exempt. Mostly what you are looking for is to find out whether additional broadcast antennas will require a fullfledged proceeding. As it is highly likely that mounting a cellular telephone or other common carrier antenna will trigger review under the new bylaw, you’ll want to know about that too. Sooner or later, you may be asked if you’d like to have a cellular antenna system on your tower. Don’t assume that you have an AM antenna and no one would be interested. Though you currently have a “hot” AM tower, there are things that can be done to make it “cold” and acceptable to a cellular carrier. Go to http:// www.kintronic.com/products/productinfo.aspx and find folded monopole or folded unipole kits from Kintronics. Nott, Ltd., is another manufacturer; see http://www.nottltd.com/antennasother.html. LBA Group is also very popular; see http://www.lbagroup.com/technology/app13.php for a nice technical paper on how it works. (Quick answer: Make it into a folded unipole.) Their marketing piece is at http://www.lbagroup.com/technology/tunifaq.php. Mounting cellular telephone antenna systems on your broadcast tower is a nice way to supplement the income of a small-town AM station. For a major-city TV broadcaster, however, the decision must be more carefully considered, in light of the fact that such broadcasters zealously guard their towers— given the rates for a 30-second spot during the evening news. Management may not think it is worth it to put the integrity of the tower at risk when cellular telephone contractors may be crawling all over the tower. There is no “right” answer to this question.

18.6 The Special Case of HDTV With the conversion of most TV stations (there are a few exceptions) from analog to digital TV in June 2009, most of the action in swapping out antennas is over. But, there may still be some tower projects that linger on. The less time you have to swap around antennas, the more urgent it is that you squeeze through the process as quickly as possible. There are a couple of thoughts that might speed the process.

18.6.1 Greenmail Blackmail is extortion, and illegal. Greenmail, named after the color of money, involves making an offer in public, as a good corporate citizen, with no quid pro quo expected (yeah, right) in the hope that your company will be well regarded. If you have been ignoring your community of antenna (as opposed to your community of license, which may not be the same), that chicken may have come home to roost. Payback time may have arrived. Nonetheless, we’re not talking morality here; we’re talking the need to get that radiator in the sky. So what can you offer? Airtime, advertising time, the purchase of some Little League shirts, advertising on the boards at the high school hockey rink, a weather forecaster for the classroom, or a DJ for the high school dance? Think of something and get moving. Just remember that you are making the offer because you want to be a good citizen and not because you expect something in return. That

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Figure 18.3 A photosimulation of a proposed HDTV antenna added to an existing tower for WLWC-TV, East Freetown, MA, serving the Providence, RI, market. (Photograph courtesy of Robert Yankowitz, CBS Boston)

path leads away from zoning law and toward criminal law. Whatever you do, please do it in public. This maximizes goodwill for the station and insulates you from claims of “backroom deals.”

18.6.2 Photosimulation If there ever was an application that begs for photosimulation, it is a high-definition antenna application for installation on an existing tower. It will really show that there is little to be seen in the way of difference in the before and after pictures. A persuasive case for photosimulation may be seen in Figure 18.3. The photosimulation began with a photograph of the existing tower and added in a simulation of the HDTV antenna. Pretty good, huh?

C HA P TER 1 9

Lease Issues

This chapter assumes you’ve got the necessary permits, and the structure is up. You may find that you soon have cellular carriers or other operators knocking on your door looking to either lease space on your tower or lease a subplot of your land to erect a tower of their own. That’s a good thing, but before you get carried away by the dollar signs flashing before your eyes, you must consider several issues. Among them are the following: ●

The effect such a structure and its construction will have upon your operations

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The financial and legal terms of the lease

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The effect additional antennas on your structure, or additional structures on your land, may have upon your compliance with the terms of the permit you’ve fought so tenaciously to secure The implications such a lease will have on your ability to modify your own structure or to sell the structure and the land upon which it sits

There are plenty of issues to evaluate and negotiate. This chapter will walk you through many of the common terms and provisions that you will need to sort out as you decide whether or not to lease, to whom, and under what conditions. What follows is almost every term that appears in a lease, along with examples of how various companies have drafted those elements in actual leases and, when appropriate, comments and suggestions about how you might handle those same elements in your own lease. Within quoted lease language, changes that were added to existing terms are noted in italics. The following discussion relates to leasing space on your own antenna support structure.

19.1 Table of Contents If the carrier’s or broadcaster’s draft lease does not come with a Table of Contents, add one. How could anyone sign a multi-paragraph, multi-page lease and expect to remember how to read it in 10, 20, or 30 years without a Table of Contents? Become familiar with Microsoft Word’s Table of Contents function, which can generate a table of contents automatically from headings within the document. 355

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19.2 Premises 19.2.1 How Much Land Should Be Leased? Dedicated space of 200 to 240 square feet (10 ⫻ 20, 10 ⫻ 24, or even 16 ⫻ 44 feet is typical) is common for an equipment building. Does the Tenant really need more? By the way, eventually you’ll need the book and page citation to find the deed at your local registry of deeds. Get it now to avoid a rush.

19.2.2 Use Think about the “use” clause as representing a spectrum of outcomes. You could let the Tenant change almost anything, at any time, even increasing weight and wind load on the tower. (By the way, weight is almost irrelevant in many cases. The real tower killer, and sometimes space hog, is wind load.) Or, you could (if you have the negotiating power) require that the Tenant get permission to change almost everything, except one-for-one maintenance swaps. A sensible middle ground is to allow changes when you receive notice, where the change does not affect the wind load. Here’s the way one deal worked out. Consider the combined effect of Use and Facilities clauses, with language accepted by the carrier in italics. This is a situation where some work may be accomplished without notice to proceed:

5. Use. From and after the Term Commencement Date, the Premises may be used by Tenant for any activity in connection with the installation, operation, maintenance, and removal of the telecommunications equipment, but only to the extent shown in Exhibit B and under the rules and procedures described in Exhibit B, and for the provision of communications services [you could add limiting language here to the effect of “but only for such services as are permitted under Tenant’s license issued pursuant to the Communications Act of 1996”], but in no event is any right to use conveyed which exceeds that which it is the power of Landlord to grant. Tenant shall have the ongoing right to perform such Investigations and Tests as Tenant may deem necessary or desirable. Landlord agrees to cooperate with Tenant, at Tenant’s expense, in making application for and obtaining all licenses, permits and any and all other necessary approvals that may be required for Tenant’s intended use of the Premises.

6. Facilities; Utilities; Access. (a) Tenant has the right to construct, erect, maintain, test, replace, remove, and operate on the Premises such communications facilities as are shown in Exhibit B, including without limitation utility lines, transmission lines, an air conditioned equipment shelter(s), electronic equipment, transmitting and receiving antennas, a standby power generator, and supporting equipment and structures therefore shown therein (“Tenant Facilities”). In connection therewith, Tenant has the right to do all work necessary to prepare, maintain and alter the Premises for Tenant’s business operations and to install transmission lines connecting the antennas to the transmitters and receivers, but only as set forth and described in Exhibit B. All of Tenant’s construction and installation work shall be performed at Tenant’s sole cost and expense and in a good and workmanlike manner. Tenant shall hold title to the Tenant Facilities and all of the Tenant Facilities shall remain Tenant’s personal property and are not fixtures. Tenant has the right to remove the Tenant Facilities at its sole expense

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on or before the expiration or earlier termination of this Agreement, and Tenant shall repair any damage to the Premises caused by such removal. Upon the expiration or earlier termination of this Agreement, Tenant shall remove the Tenant Facilities from the Property. The relevant portion of Exhibit B presently reads: Regulations: ...

4. The type, number, mounting positions, and locations of antennas and transmission lines are illustrative only. The actual types, numbers, mounting positions, and locations for the initial installation may vary from what is shown above, provided that Landlord has issued a Notice to Proceed letter allowing any changes. Tenant is authorized to install and maintain the above equipment, for which an “as built” drawing will be provided within 90 days of the completion of Tenant’s construction, which “as built” drawing will thereafter be replaced and kept current as necessary, should Tenant’s equipment on the Tower change. Cost for such work shall be borne by the Tenant. No change or modification of equipment on the tower, or outside of the equipment building, as shown on the “as built” drawings, may thereafter be made without written consent of Landlord in the form of a Notice to Proceed. In any event, however, no change may increase Tenant’s wind loading on the tower, and Tenant will provide evidence to Landlord’s reasonable satisfaction that equipment exchanges or upgrades do not increase loading on the Tower. A Notice to Proceed will only be issued upon receipt by Landlord of (a) a detailed plan of the proposed construction, replacement or upgrading, (b) all necessary governmental approvals, including a building permit if necessary, and (c) receipt by Landlord of assurance from its own engineer that the proposed construction, replacement or upgrading will not affect wind loading on the tower, nor interfere with other tower users. The cost of this review, up to $1,000 (which cost maximum shall increase at the same rate of annual increase as the rent), shall be at the expense of Tenant. You can play with the cost of review number. You could also institute a minimum cost just to review (add to “a detailed plan . . ., which shall be accompanied by an application fee of $250.00”), and you could raise the maximum exposure of the applicant for review. Do not limit the review to structural engineering, as you might also wish to review radiofrequency interference (RFI) potential.

19.2.3 Access The Tenant will also want the agreement to permit a nonexclusive access easement to the leased site. That’s reasonable, but remember that you should define the access. Make the communications crews use one access road and one access road only. Will it be the front road, the side road, or the back road? By the way, should the tenant be required to build a road? Where will the gate be? Unless there isn’t much choice, the farmer might not want service trucks driving by his kitchen all the time. Also, the Tenant will ask for an additional utility easement. That’s fine, but make sure that the new utilities will not go through your favorite petunia garden. Define where those conduits and cables will go in advance. And make sure you specify that you are not obligated to plow snow. Here are some typical paragraphs. Each is from an actual lease, from either a wireless carrier or a broadcaster, the names of which I’ve replaced with generic identifiers.

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Carrier 1 (with suggested change in italics) (c) Tenant, Tenant’s employees, agents, and contractors shall have access to the Premises without notice to Landlord twenty-four (24) hours a day, seven (7) days a week, at no charge. Landlord grants to Tenant, and Tenant’s agents, employees, and contractors, a nonexclusive right and easement for pedestrian and vehicular ingress and egress across the Land as may be described generally in Exhibit B-1. In the event of inclement weather that restricts Tenant’s access, Landlord shall restore such access as soon as commercially reasonable. Notwithstanding the above, Landlord is not responsible for clearing ice or plowing snow.

Carrier 2 (with an agreed change in italics) 12. Access. At all times throughout the Term of this Agreement, and at no additional charge to Tenant, only Tenant and its authorized employees, or agents and subcontractors under their direct supervision, will have twenty-four (24) hour per day, seven (7) day per week pedestrian and vehicular access to and over the Property, from an open and improved public road to the Premises, for the installation, maintenance and operation of the Communication Facility and any utilities serving the Premises and Landlord grants to Tenant an easement for such access. It is further agreed that, as the premises are close to Landlord’s residence, except in cases of emergency, such access shall be only during the business day. Nonetheless, Landlord is not responsible for plowing snow to provide access to the Premises. Upon Tenant’s request, Landlord will execute a separate recordable easement evidencing this right. In the event any public utility is unable to use the access or easement provided to Tenant then the Landlord agrees to grant additional access or an easement either to Tenant or to the public utility, for the benefit of Tenant, at no cost to Tenant. Here are some additional suggested clauses that may be relevant to your situation: As the premises are close to the Landlord’s residence, all other access shall be during reasonable business hours (weekdays, 8:00 a.m. to 6 p.m. local time), and upon at least one hour’s notice. For the purpose of this paragraph, notice by telephone is sufficient. Notwithstanding the above, Landlord is not responsible for clearing ice or plowing snow, removing fallen trees, or otherwise clearing the accessway when it has been obstructed by an act of nature. The recordable easement should be valid only during the term of the lease.

Here are some examples of how those clauses might look inserted into more standard language. From a subsequent Carrier 2 lease (with agreed changes in italics) 12. Access. At all times throughout the Term of this Agreement, and at no additional charge to Tenant, Tenant and its employees, agents, and subcontractors will have twenty-four (24) hour per day, seven (7) day per week pedestrian and vehicular access to and over the Property, from an open and improved public road to the Premises, for the installation, maintenance and operation of the Communication Facility and any utilities serving the Premises. Landlord grants to Tenant

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an easement for such access and Landlord agrees to provide to Tenant such codes, keys, and other instruments necessary for such access at no additional cost to Tenant. Landlord acknowledges that in the event Tenant cannot access the Premises, Tenant shall incur significant damage. If Landlord fails to provide the access granted by this Paragraph 12, such failure shall be a default under this Lease. Notwithstanding the above, Landlord will not be responsible for clearing ice or plowing snow, removing fallen trees, or otherwise clearing the accessway when it has been obstructed by an act of nature. In connection with such default, in addition to any other rights or remedies available to Tenant under this Lease or at law or equity, Landlord shall pay Tenant, as liquidated damages and not as a penalty, $500.00 per day in consideration of Tenant’s damages, including, but not limited to, its lost profits, until Landlord cures such default. Landlord and Tenant agree that Tenant’s damages in the event of a denial of access are difficult, if not impossible, to ascertain, and the liquidated damages set forth herein are a reasonable approximation of such damages. Upon Tenant’s request, Landlord will execute a separate recordable license, or easement limited to the term of this lease, evidencing this right. In the event any public utility is unable to use the access or easement provided to Tenant then the Landlord agrees to grant additional access or an easement either to Tenant or to the public utility, for the benefit of Tenant, at no cost to Tenant.

From a public radio/ETV lease LESSEE shall not damage or obstruct the access route to the Premises and any antenna support structures thereon during construction or installation of its facilities at the Premises, and shall repair any disturbance to the Property and adjacent lands created by its installation or construction. LESSOR shall not be responsible for clearing snow, or otherwise maintaining the access to the Premises for LESSEE, and may maintain the access to whatever standards LESSOR deems acceptable.

Inserted and accepted in a Carrier 3 lease Notwithstanding the above, Landlord is not responsible for clearing ice or plowing snow, removing fallen trees, or otherwise clearing any access roadway when it has been obstructed by an act of nature.

Very restrictive form from a Carrier 5 lease 8. Access to Tower. LESSOR agrees the LESSEE shall have free access to the Tower at all times, under the terms and conditions of the Prime Lease (see Paragraph 1 “Lease”), for the purpose of installing and maintaining the said equipment and LESSOR shall furnish LESSEE with necessary means of access for the purpose of ingress and egress to this site and Tower location, for pedestrians and vehicles, except that LESSOR is not required to provide any snow plowing services on the access road. It is agreed, however, that only authorized engineers, employees, or properly authorized contractors of LESSEE, or persons under their direct supervision, will be permitted to enter said premises. It is further agreed that such access, for the purpose of installing and maintaining said equipment shall be only during the business day, except in cases of emergency. If access is necessary due to an emergency, LESSEE agrees to notify LESSOR within 24 hours of the access by calling 508/653-7200, extension 501 (or such other number as may be subsequently provided).

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19.2.4 Utility Poles/Utility Service Do you want to ensure that the poles come from the same direction as the road and along the road? Or should the power or telephone poles be placed by agreement? Will the Tenant agree to bury the power or telephone feed? (Underground construction is much more expensive.) Sketch it in Exhibit A, the plot, or site plan. A common clause 13. Utilities. Landlord shall ensure that utility services are accessible and available at the Site for Tenant’s intended use. Tenant shall be responsible for the separate metering, billing, and payment of its utility services consumed by its operations.

Practice Tip: What does this mean? Do you have to provide the utility poles if the present power is inadequate? Carrier 3 (with accepted changes in italics) With Landlord’s written consent as to location in each instance, obtained prior to filing for any applicable construction permits, Tenant shall have the right to install utilities, at Tenant’s expense, and to improve the present utilities on the Property (including, but not limited to, the installation of emergency power generators). Landlord agrees to use reasonable efforts in assisting Tenant to acquire necessary utility service. Tenant shall, wherever practicable, install separate meters for utilities used on the Property by Tenant. In the event separate meters are not installed, within twenty (20) days after an invoice is rendered to Tenant by any means actually received (so as to aid Landlord in avoiding any interest or penalty), Tenant shall pay the periodic charges for all utilities attributable to Tenant’s use, at the rate charged by the servicing utility. Landlord shall diligently correct any variation, interruption or failure of utility service.

From Carrier 4 C. Utility Installation. Landlord grants Tenant an easement to install and use an electrical power source to the Premises either by means of above-ground pole transmission or by on-the-ground or underground facilities, whichever is deemed more appropriate by the Tenant. Landlord grants Tenant an easement to install and use telephone service at the Communications Facility. The cost of installation of power supply and cost of telephone service installation shall be paid by Tenant, except that Tenant shall not pay any amount in addition to the rent reserved hereunder for use of utility poles, wires or cables owned by Landlord and used by Tenant to obtain such utility service. Tenant shall obtain Landlord’s written consent to the location of new or replaced utility poles, wires, or cables used for transmission of electrical power or telephone communications to and from the Premises prior to filing any applicable construction permits. Landlord’s consent shall not be unreasonably delayed or withheld. Modification of Landlord’s utility installations, if any, shall not interrupt, damage or conflict with the utility services constructed by Tenant, or with requirements imposed by any utility or governmental authority with jurisdiction over the construction of the Communications Facility. [Add:] If utilities are to be modified, with Landlord’s consent as provided herein, Tenant shall promptly provide Landlord with

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an amendment to, or substitute for, this Exhibit B, showing the “as built” conditions. [Add to deal with a noise ordinance:] Subject to any applicable regulation of noise, and with Landlord’s consent which shall not be unreasonably delayed or withheld, Tenant shall also have the right to install permanent or temporary generators for Tenant’s emergency power requirements.

19.2.5 Easements for Utilities Carrier 3 (with accepted changes in italics) As partial consideration for Rent paid under this Lease, Landlord hereby grants Tenant easements on, under, and across the Property for ingress, egress, utilities, and access (including access for the purposes described in Section 1) to the Premises adequate to install and maintain utilities, including, but not limited to, the installation of power and telephone service cable, and to service the Premises and the Antenna Facilities at all times during the Initial Term of this Lease and any Renewal Term (collectively, the “Easements”). Tenant shall obtain Landlord’s written consent to the location of new or replaced utility poles, wires, or cables used for power and telephone service prior to filing any applicable construction permits. Landlord’s consent shall not be unreasonably delayed or withheld. The Easements provided hereunder shall have the same term as this Lease.

19.2.6 Antennas Watch out for wind-load creep and height creep. The antennas should be specified by make and model, as that pins down the wind load if a later controversy arises. (By the way, you can’t trust anyone’s wind-load numbers, because they can be calculated in different ways, due to choice of method for shedding wind). The lease and exhibit (generally Exhibit B) should specify the mid-line, as that is the industry standard (also called “center-line” or “C/L”). It is not fair if the Tenant mounts the bottom of the antennas at the height mentioned, so to avoid surprise specify a mid-line. The number and size of coax and any other lines going up the tower should be specified. If wind load is going to be a problem, and even if it isn’t, for appearance sake you probably want feedlines bundled, instead of spread across the face of the tower (which can make it look dark). Here’s a suggested Exhibit that helps Landlords: EXHIBIT B-2 LIST OF EQUIPMENT AND CONSTRUCTION PRACTICES Tenant may install the equipment described as follows. 1.

A prefabricated equipment shelter, 12⬘ ⫻ 20⬘ ⫻ 11⬘ (W ⫻ L ⫻ H), with ice bridge to the tower.

2. Antennas: Up to __ antennas total (DB844H80 or EMS FR90-13 or equivalent), with their radiation center at ___ ⫹/⫺ feet AGL. For the purposes of avoiding damage to the tower, Tenant’s antenna quantity shall be approved by a licensed professional structural engineer, at Tenant’s expense, and said engineer’s report shall be provided to Landlord prior to Tenant’s installation.

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3. Coaxial cables—up to ___ lines of Commscope (or equivalent) 1-5/8⬙ 4. Other cables: __________________________ 5. Frequencies: Transmit band: 851–866 MHz; 935–940 MHz Receive band: 806–821 MHz; 896–901 MHz 6. Source of emergency power: ______________________ Construction Practices 1.

Tenant shall replace the Initial Construction Drawing of Exhibit B with an “as built” survey of the Premises once Tenant receives it.

2. All Tenant equipment and construction shall be set back from the Property’s boundaries as required by the applicable governmental authorities. 3. The access way’s width shall be only the width required by the applicable governmental authorities, including police and fire departments. Any upgrade which may be required by an applicable governmental authority shall be at Tenant’s expense. 4. Tenant is authorized to install and maintain the equipment shown on the Landlordapproved Initial Construction Drawing, for which an “as built” drawing to substitute as Exhibit B-2 shall be provided within 90 days of the completion of Tenant’s construction. The type, number, mounting positions and locations of antennas and transmission lines, as well as all other installed equipment, shall be portrayed in the “as built” survey drawing. The “as built” drawing will thereafter be replaced and kept current as necessary, should Tenant’s equipment on the Tower change, after approval if it represents a change or modification. Cost for such work shall be borne by the Tenant. After initial construction, no change or modification of equipment on the tower, or outside of the equipment building, as shown on the “as built” drawings, may thereafter be made without written consent of Landlord in the form of a Plan Approval. In any event, however, no change may materially increase Tenant’s wind-loading on the tower, and Tenant will provide evidence to Landlord’s reasonable satisfaction that equipment exchanges or upgrades do not increase loading on the Tower. A Plan Approval will only be issued upon receipt by Landlord of (a) a detailed plan of the proposed construction, replacement or upgrading, (b) all necessary governmental approvals, including a building permit if necessary, and (c) receipt by Landlord of assurance from its own engineer that the proposed construction, replacement or upgrading will not affect windloading on the tower, nor interfere with other tower users. The cost of this review, up to $1,000 (which cost maximum shall increase at the same rate of annual increase as the rent), shall be at the expense of Tenant. 5. Landlord understands that the location of any utility easement on the Initial Drawing is illustrative only. The actual location will be determined by the servicing utility company in compliance with all local laws and regulations and approved by Landlord. 6. All construction shall comply with generally accepted good commercial construction practices, including: (a) In case of suspected interference or intermodulation problems, Tenant must cooperate in a timely fashion with Landlord, whether or not it can be conclusively proven whose equipment is involved.

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(b) All ferrous metals used as part of the mounting hardware must be hot-dipped galvanized or stainless steel. The screws, bolts, lock washers, and nuts should be stainless steel, brass, or hot-dip galvanized. (c) All antennas shall be tagged with weatherproof labels showing the manufacturer, model and frequency range. (d) For grounding systems, the metallic contact surfaces where the interconnections are made should be cleaned and be free of foreign materials like paint and rust. All exposed metallic contact surfaces shall be coated with an anti-oxidant compound. Where possible, grounding connections shall be cad-welded. (e) Tenant shall cooperate with Landlord in a timely fashion to ensure that RF exposure for tower repair/rigging personnel, or other construction personnel perform work at the site, does not exceed the limits of 47 CFR §1.1310, or as it may subsequently be amended. If necessary to comply with the FCC’s Maximum Permissible Exposure guidelines, the power to antennas shall be temporarily reduced as much and as long as necessary to avoid exposing the crew to RF emissions in excess of the current FCC standards. (f) Tenant may not store materials outside of its equipment building or enclosure. Garbage and packing material shall be promptly removed from the Premises. Garbage and packing material remaining on the premises for more than seven (7) days after Notice, may be removed by Landlord at Tenant’s expense.

19.2.7 Changes (See also Section 19.2.2, Use.) Make sure that the lease requires the Tenant to get written consent for any alterations to the installation, but be reasonable and agree that consent cannot be unreasonably denied (“withheld, delayed, or denied” can be used as fallback language).

Suggested Language Upon written consent of Landlord in each instance, obtained prior to filing for any applicable construction permits . . . Nonetheless, Tenant may not exceed the wind load on the tower of the antenna system, nor the leased area on the ground, described in Exhibit A-2.

In any event, the “Use” paragraph should be examined to prevent upgrade or additional enlargement of antennas or ground space use without permission. The only thing a tower owner has to rent is space and wind load. Guard it carefully.

19.2.8 Wind-Load Upgrades Make sure the carrier is required to make any structural upgrades to the tower that result from additional loads. The best way to do this is to use the absolute prohibition on increasing wind load on the tower, as described above. Additional weight or wind load, additional power output (especially if the tenant does not have separately metered AC power), or additional frequencies could cause an

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“appropriate” increase in rent. But don’t be greedy. You don’t want to send a perfectly good-paying tenant out hunting for a new site.

19.2.9 Condition of the Premises From a Carrier 3 lease in a backyard site: After the completion of initial or any subsequent construction, Tenant shall return any portion of the Property disturbed by construction to a condition comparable to the condition of the Property before the construction. Tenant shall, at Tenant’s expense, keep and maintain the Antenna Facilities now or hereafter located on the Property in commercially reasonable condition and repair during the term of this Lease, normal wear and tear and casualty excepted. Upon termination or expiration of this Lease, the Premises shall be returned to Landlord in good, usable condition, normal wear and tear and casualty excepted.

19.3 Title and Quiet Possession 19.3.1 Transfer of Warranty No grant of lien, encumbrance, easement, restriction, or other change to title without prior written consent of Tenant/Lessee? Nah. No Landlord should ever give that to a Tenant. But, “subject to tenant’s rights”? Yes.

19.3.2 CC&Rs Do you know of any covenant, condition, or restriction of record (sometimes CC&R stands for “Common Covenant and Restraint”) that may make you a defendant to a complaint asking a court to enjoin the construction of a tower? If you do, disclose it now—and avoid a lawsuit later. How would you make such a disclosure? The answer is formally and in writing.

19.3.3 Defects of Title If the potential Lessee has the right to clear clouds on title by spending his rent, you could wind up with the Lessee getting perfect title and the Lessor getting no rent at all, as the Lessee will have no incentive to be spare in his spending to clear the title. How about a maximum of $2,000? Or, Lessee should obtain an abstract of title beforehand and, if there is no clear title, Lessor shall have 18 months in which to clear title or the lease is terminated. Be careful if Landlord does not own the underlying land. Carrier 1 lease (with accepted changes in italics) (i) Landlord agrees to fully cooperate, including executing necessary documentation, with Tenant to obtain information and documentation clearing, insofar as Landlord is capable of obtaining such information and documentation, as well as clearing, any outstanding title issues that could adversely affect Tenant’s interest in the Premises created by this Agreement.

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If Landlord does not own the underlying land, a request for easements must be modified as follows.

(iii) Agree to Convey. In accordance with other provisions of this Lease Agreement, insofar as Landlord is capable, Landlord agrees to execute such documents as shall be necessary to carry out the intent of this Lease Agreement, including, without limitation, agreements for utilities, as well as ingress and egress, on the Property and to the Premises.

If you are not careful, though you do not own the land, you might see this paragraph:

Carrier 4 lease At all times from the Effective Date forward, LESSOR warrants to LESSEE that LESSOR holds good and marketable title to the Property and has the full power and authority to enter into and execute this Agreement.

Suggested change to Carrier 4 lease At all times from the Effective Date forward, LESSOR agrees to fully cooperate, including executing necessary documentation, with LESSEE to obtain information and documentation clearing, insofar as LESSOR is reasonably capable of clearing, any outstanding title issues that could adversely affect LESSEE’s interest in the Premises created by this Agreement.

19.3.4 Most Favored Nation Clause Carrier 4 S. Protection of Tenant’s Cellular System. Landlord covenants that Landlord, its successor and assigns, shall not contract with any other wireless two-way communications broadcaster, who is a competitor of Tenant, for a leasehold, license, other fee or interest in the Property or Tower during the Lease Term without Tenant’s written approval which shall not be unreasonably withheld. Landlord shall provide ninety (90) days’ prior written notice to Tenant of the terms of a proposed contract and supply to Tenant such information as Tenant shall reasonably require, including, but not limited to, the competitor’s broadcast frequencies, power output, and all proposed antenna types, sizes and locations. Should Tenant in its sole discretion reasonably deem any term of the proposed contract to be more economic or advantageous than the corresponding term of this Agreement, Tenant may notify Landlord in writing of the terms it has selected and Landlord shall be obligated to amend this lease to include such term within thirty (30) days of said notice. If Landlord makes such competitive contract, written or oral, without prior approval of Tenant, Tenant may terminate this Lease Agreement without further notice to Landlord, and,

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notwithstanding any other term of this Lease Agreement to the contrary, Tenant may seek a remedy in any court of competent jurisdiction, against either or both Landlord and the other communications broadcaster, including but not limited to an action for money damages for the value of its Communications Facility and the leasehold and an action in equity to remove such other broadcaster from the Premises.

This says that you have to make any concession to Carrier 4 that you agree to make with anyone else. Bzzzzt. Delete it in its entirety.

19.3.5 Ownership You might see a clause declaring that you have “exclusive ownership” of something. If you don’t, modify that clause! Carrier 4 Ownership of Communications Facility. Tenant at all times shall have exclusive ownership of the Communications Facility.

Watch out for the definition of the Communications Facility, as it includes:

Communications Facility. All equipment and structures required for Tenant’s use of the Premises, including but not limited to antennas, the Building, cable connections, generator, fuel storage tank, heating/cooling unit(s), parking area, and waveguide bridge.

The solution?

Ownership of Communications Facility. Tenant at all times shall have exclusive ownership of its personalty at the Communications Facility.

19.4 Term The typical lease is for a term of five years, with renewals for additional five-year terms after that. If it’s a good business for all concerned, there’s probably no need for a total of more than 20 to 25 years in total. Thirty-five years is probably excessive. Remember, however, that the number of years in the term is a business, not a legal decision. Your lawyer will have no special guidance (except his experience that 35 years is probably not necessary to do a deal). Most Landlords would favor 25 years (four renewals). Absent other plans, most Tenants favor 30 years (five renewals). Remember, the Tenant is not forced to renew.

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19.4.1 Start (See also Commencement.) There are two different “commencement” issues. The first question is when does the lease begin? The usual answer is after the option period. The second question is when should the rent start? A sensible approach is $100 to $500/month rent from the signing or first available date if there is some zoning to go through. Certainly the Tenant should start paying when the permit is issued, although perhaps at a lesser rate until construction is complete, but in any event not later than six months after all permits have been obtained. Otherwise, the carrier is just warehousing the space and not paying for the space, while the tower owner must keep that space off the market. A typical solution is that rent starts when all permits are obtained (on the first day of the month following the issuance of all necessary permits, or within 30 days thereafter), or six months after signing the lease by Tenant. Landlords have every incentive to start that rent flowing, but should not be too greedy. After all, this is a long-term relationship. Carrier 3 lease In consideration of the payment of One Hundred and no/100 dollars ($100.00) (the “Option Fee”) by Tenant to Landlord, Landlord hereby grants to Tenant an option to lease a portion of the real property described in the attached Exhibit A (the “Property”), together with the right to use the tower located thereon (“Tower”), on the terms and conditions set forth herein (the “Option”). The Option shall be for an initial term of twelve (12) months, commencing on the Effective Date (as defined below) (the “Option Period”). The Option Period may be extended by Tenant for an additional twelve (12) months upon written notice to Landlord and payment of the sum of One Hundred and no/100 dollars ($100.00) (“Additional Option Fee”) at any time prior to the end of the Option Period.

As modified for this existing tower (where the Tenant needed only to add antennas and an equipment shed): In consideration of the payment of One Hundred and no/100 dollars ($100.00) (the “Option Fee”) by Tenant to Landlord, Landlord hereby grants to Tenant an option to lease a portion of the real property described in the attached Exhibit A (the “Property”), together with the right to use the tower located thereon (“Tower”), on the terms and conditions set forth herein (the “Option”). The Option shall be for an initial term of six (6) months, commencing on the Effective Date (as defined below) (the “Option Period”). Unless sooner begun, the Term of this lease and monthly rent shall begin six (6) months after the Effective Date.

19.4.2 Renewal If you have rented bare land to a carrier, it is reasonable for the Lessee to have renewal in his sole discretion for the first 15 to 20 years, as he’s got to amortize the costs of his construction (any driveway, pad, equipment shed, utilities, and antennas/feedlines on the tower). After that, however, it is reasonable for the landowner to be able to end the agreement, too. At this point, there are two common approaches. The first approach to the end of a lease is to just end the agreement. If the parties wish to continue, they can then renew and just specify the new term and rent. Or, the second approach is that the

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original agreement could have more five-year terms, with either party able to notify the other that the agreement will not be renewed. There’s not much difference between those two strategies legally, but the additional years, though subject to nonrenewal, might help persuade a bank to make a loan to the landowner, or might help the carrier sell the site as part of the company.

19.4.3 No Renewal If in Default Why would you wish to allow a renewal if the Tenant is in default, especially if the Tenant is not current on rent? Look for this question to arise in the paragraph on “term and renewals.” Here’s how to modify the Carrier 4 agreement: If Tenant is not in default of any provision of this Lease Agreement at the time for extension, including its payment terms, Landlord grants to Tenant four (4) separate options to extend the Lease Agreement for four (4) Additional Terms of five (5) years each, on the same terms and conditions set forth in this Lease Agreement for the Initial Term, except as modified by the provisions in Section 7. [Section 7 is the increase in rent clause.]

19.4.4 Lessor/Landlord Termination Mere progress is no reason not to terminate a lease that has not generated any income for more than 18 months. I apologize for writing in a double negative. The lease should have a “terminate or pay” clause, with payments beginning after 18 months, no matter what—or else the Landlord may (but is not required to) terminate the lease. Or, a front-end payment to keep the lease alive for up to two to three years might be reasonable. There is a deal that can be cut here. A larger front-end payment should keep the lease valid for a longer period before the regular monthly payments kick in. If the Tenant insists that you shouldn’t be able to terminate once he can demonstrate progress, your reply is that it must be continuous progress, and any time the progress stops, for 30 to 45 days or more, you should be able to terminate.

19.4.5 Lessee/Tenant Termination What is usual? Three months’ notice and three months’ penalty. Better is nine months’ notice, with no penalty. (It has been done). The Carrier 4 standard lease offers six months’ notice for nonrenewal. The outer limit for asking is probably nine months’ notice and three months’ penalty. Here’s an idea on limiting what amounts to an unfettered ability to quit the premises: For economic reasons. . . . by Tenant if Tenant determines that the Premises are not appropriate for its operations for economic (though the ability to substitute a different site within five miles at a lower cost shall not qualify) or technological reasons, including, without limitation, signal interference.

Unfortunately, no matter how rational this idea may be, no one can assure you that this concept will be accepted by the carrier.

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Here’s a pretty standard paragraph: (f) Penalty. If this lease is terminated under paragraph 8(c), Tenant shall pay Landlord, during the notice period, an amount equal to six months of the then current rent. Here’s another standard carrier termination, showing how to modify the amount due to the Landlord. 24. Termination. (a) General Right of Termination. Notwithstanding any other termination rights available to SUBLESSEE under this Agreement, SUBLESSEE, at its sole and absolute discretion, shall have the right to terminate this Agreement with ninety (90) days prior written notice to SUBLESSOR and a lump sum payment to SUBLESSOR in an amount equal to six (6) months rent or the total of the remaining months of the term, whichever is less. The rental rate shall be computed at the rate that is in effect at the time of termination. As the phrase or concept of “current rent” freezes rent at the “old” rate, when a “new” rate was just about to kick in, the Landlord should try for: “an amount equal to the sum of the rents due for each of the next six months of the term, or the total of the remaining months of the term, whichever is less.” Public radio FM as Tenant (this language looks pretty reasonable) 15. Termination. This Agreement may be terminated without further liability as follows: (i) on thirty (30) days prior written notice by LESSEE if LESSEE is unable to occupy and utilize the telephone poles and/or Property due to an action of the FCC (including without limitation, a take back of channels or change in frequencies) that did not result from a finding that LESSEE acted or failed to act in accord with its obligations under its License or applicable federal law; or (ii) on thirty (30) days prior written notice by LESSEE if LESSEE’s use of the Property is materially impaired due to casualty loss to the Property or for other any other reason not caused by LESSEE; or (iii) on thirty (30) days prior written notice by LESSOR if LESSOR enters into a written contract to sell the Property, or to sell a controlling interest in LESSOR and if the buyer under such contract has notified LESSOR in writing that the buyer wishes LESSOR to terminate this Agreement.

Carrier 3 as Tenant (suggested change in italics) Termination for Damage or Destruction. Except for damage caused by Tenant or its agents, immediately upon written notice by Tenant if the Premises or the Antenna Facilities are destroyed or damaged so as in Tenant’s reasonable judgment to substantially and adversely affect the effective use of the Antenna Facilities. In such event, all rights and obligations of the parties shall cease as of the date of the damage or destruction, and Tenant shall be entitled to the reimbursement of any Rent prepaid by Tenant. If Tenant elects to continue this Lease, then all Rent shall abate until the Premises and/or the Antenna Facilities are restored to the condition existing immediately prior to such damage or destruction.

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The question here is why should the Tenant be allowed to destroy or damage the tower and then use that as an excuse to quit the premises?

19.5 Rent Now don’t go crazy. Despite your pride in your prowess in selecting and owning prime real estate, it is probably not the only game in town, and the site acquisition consultants are very good at finding alternatives within the geographic circles given to them by the likes of Sprint, AT&T Wireless, Verizon, and so forth. Just because you have a cousin with the only high-rise building in an exclusive suburb who gets $3,000 per month for antennas on his roof, does not mean that you will get the same amount for a corner of your farm in rural Ohio, even when dealing with the very same carrier. Despite the leases in the past that came with confidentiality clauses to hold the terms of deals struck as confidential, you can still become calibrated as to the value of land in your neighborhood. How? There are some deals to which the confidentiality clauses do not apply—for example, deals with some churches where the lease must be voted upon by the entire congregation or deals with municipalities where a “sunshine law” (Freedom of Information Act) applies. You can always ask the question a different way and get a useful answer. Let’s say you know that Carrier X is the prime Tenant at a site and that there is a confidentiality clause. While you cannot get an answer to the question of how much Carrier X is paying, you might get an answer to the question: “How high was the offer you turned down, because Carrier X was higher?”

19.5.1 501(c)(3) Tenants A public or religious radio or TV station, or a college station, might ask for lower rent on a structure. You might consider agreeing in exchange for the tax benefit appearing in the sentence below. If your Tenant is a qualified 501(c)(3) organization, ask if, in consideration for the very reasonable rent you are offering, an additional 20% could be considered an “in-kind” donation, acknowledged annually, so you, as a land owner (or tower owner) can get a tax benefit.

A Public Radio FM Station as Tenant The LESSEE shall pay a rate of $1,000 per month (the “Base Fee”), where the LESSEE shall make a monthly cash payment of $800 and shall acknowledge the $200 balance as an in-kind donation by the LESSOR to the LESSEE. LESSEE shall pay to LESSOR in monthly installments due on the first day of each calendar month in advance. 7.2 Escalations. Beginning on June 1, 2009, and on June 1st of each succeeding year of the term of this Agreement, the Base Fee, reflecting the proportion of cash payment to in-kind donation as set forth in the initial term (80/20), for each yearly period shall increase at a rate of three percent (3%).

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19.5.2 Start Date for Payments It is normal to have a potential Tenant pay a small amount, whether $500 for the first year as an option payment, or $500/month (i.e., you are holding space at 160 feet and you are being asked to keep that height off the market). If permits are not granted within one year of the date of signing, it would be normal to ask for another payment to hold the space. This option payment might continue until (1) the grant of required zoning permits, (2) the grant of all required zoning and building permits, or (3) the commencement or completion of construction. Then the rent would go to market rent (i.e., the full agreed rent). Here’s a good compromise.

Carrier 2 will agree to Commencing one year after the date of this Agreement, or on the date that Tenant commences construction (the “Commencement Date”), whichever comes sooner, Tenant will pay the Landlord a monthly rental payment . . .

19.5.3 Late Payments One public radio station (as Tenant) agreed to LESSEE shall pay a late fee in the amount of five percent (5%), or the maximum permitted by law, whichever is less, of the amount due if LESSEE does not pay rent within five (5) days after it becomes due and payable.

Trust me, the only Landlord who gets a 5% late fee is one with a strong position, perhaps a Landlord who can legally engage in self-help (shutting off electricity). But, it is really painful when a Tenant doesn’t pay on time—month after month, year after year. Be aware that you’ll probably never get a late payment fee from the federal government, even when they go through the annual dance with Congress where budgets (the federal fiscal year begins on October 1) are not passed until well after the end of the fiscal year and you haven’t been paid. For this reason, think long and hard before giving the federal government a break on rent, as you may be looking at late rent payments every October and November for the rest of your days on this planet.

19.5.4 Extension Rentals If no one does anything, and the lease says that, upon expiration, it continues on under the terms and conditions of the last rental period, the Landlord loses. At least the rent should continue to go up by the same amount that it went up in the past, such as 3% per year. The lease should not continue “at the same terms and conditions,” a common clause.

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19.5.5 Renewal Rent Increases If the lease says that the rent will go up 3% at each renewal term, that means 3% every five years. If the lease says 15% at the start of each renewal term, that’s not the same as 3% per year; it is less. The industrywide accepted figure is 3% per year. Here’s one way to accomplish a 3% increase after the lease has expired, which has been accepted by a carrier:

During the Initial Term and any Renewal Terms, as well as any month-to-month tenancy thereafter, monthly Rent shall be increased on each annual anniversary of the Commencement Date to an amount equal to one hundred three percent (103%) of the monthly Rent in effect immediately prior to the anniversary date.

Another common rent increase clause calls for rent to increase with the Consumer Price Index.

19.6 Revenue Sharing For a situation where you do not own the tower, and a multi-carrier tower is going to be constructed on your land, you can certainly ask for a share of the revenue of subsequent Tenants. The folks who are doing the permitting, clearing the ground, paving the road, building the tower, and fencing in the area—the initial Tenant—deserves to have those costs reduced by payments from the presence of additional Tenants. As a form of resisting your request for sharing the revenue of those additional Tenants, the primary Tenant is likely to reply: “You don’t need anything as part of the Agreement, any additional Tenant will have to negotiate with you for a ground lease in any event.” Not good. A Tenant could find that making two leases happen (one for tower space and one for a ground lease) is too much effort. Or, the Tenant could be someone who needs only a tiny box, instead of a major prefabricated concrete building, and your ground lease rent could be equally tiny. The better way is probably revenue sharing. Deals are done at rates between 15% and 50%. This is a matter of arm wrestling. Ten percent is not enough. At 15%, the Tenant is still taking advantage of the landowner. Most deals are done in the 25% to 50% range, with 25% as normal. Watch out for terms that call for additional rent for additional “carriers”. As a landowner, you want additional rent even if the additional Tenant is not a carrier. It could be a land-clearing company, a taxi or ambulance service, a weather reporting station for a broadcaster, a traffic camera, and so forth. In the additional rent sentence, offering a percentage of rent from additional carriers, change the word “Carrier” to “Tenant,” because you want additional rent for additional Tenants.

19.6.1 Books and Records For revenue sharing deals, the Landlord needs reasonable access, upon notice and during business hours, to such books and records as shall assure him that the payment reflects his proper share. The Tenant may wish to limit the access to once or twice per year, to keep the Landlord out of his hair. That’s fair.

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19.6.2 Initial Payment The reason why a Landlord may request an initial payment is that, in exchange, he’s taking his land off the market. However, in today’s market the Landlord can only expect a single payment of $500 to $2,000—no more. Some companies will not make any initial payments. If that’s the way they feel, you should be sure that the lease payments are, in your view, adequate. Or you might request something akin to a “break-up” fee, should the Tenant decide, after all, not to use your land. Such a fee would compensate you for the legal expenses you’ve incurred in negotiating the lease and for keeping your property off the market. Such a fee would be comparable to the loss of the “earnest money” deposit when a homebuyer backs out of a sale. You could insert it into the “Termination” clause, for situations where the termination occurred before anything was constructed. Again, don’t be greedy. The carriers are constantly engaged in hand-to-hand combat for customers and really do need to keep their costs in line.

19.7 AM Towers See 47 CFR §73.186 for the requirements for a complete proof of performance of an AM broadcast antenna system. See 47 CFR §73.154 for the requirements for a partial proof of performance of an AM broadcast antenna system. The partial proof is used to show that nothing has changed substantially since the last full proof was performed. If the partial proof shows a change, it is necessary either (1) to do whatever is necessary to restore the parameters to their original values, or (2) to perform a new full proof and submit FCC Form 301 to have the terms of the AM station’s license modified. In general, the first alternative (restoration of parameters) will be less expensive than the latter (a new full proof). If the broadcaster who owns the AM tower (or his attorney) is smart, the contract with the wireless Tenant will require the Tenant to bear the costs of these measurements, FCC filings, etc. None of this applies to FM or TV stations. It is only the pattern of the AM station that must be ascertained after installation on a “hot” tower or within the field of an AM tower. (A tip of the hat to Lew Collins, Ph.D., W1GXT, of Broadcast Signal Labs for this tip.) As a broadcaster, sooner or later you will need FCC Form 301, Application for Construction Permit for a Commercial Broadcast Station (http://www.fcc.gov/Forms/Form301/301.pdf), or Form 302, Application for AM Broadcast Station License (http://www.fcc.gov/Forms/Form302-AM/302-amFill .pdf). If you own the AM station’s tower, consider this clause. This is an AM Tower. SUBLESSEE understands that this is an AM broadcast tower. Upon completion of construction by SUBLESSEE, SUBLESSEE shall cause to be performed a partial proof of performance of an AM broadcast antenna system, in conformance with 47 CFR §73.154. If the partial proof shows a change in performance, SUBLESSEE shall do whatever is necessary to restore the parameters of the AM antenna system to their original values, or perform a new full proof of performance in accordance with 47 CFR §73.186 and, if necessary, cause to be submitted FCC Form 301 [302AM?] which must result in the modification of the terms of the AM station license which satisfy, in its sole discretion, SUBLESSOR.

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19.8 Contingencies 19.8.1 Governmental Approvals These are getting to be a bear and could take three years. Get used to it. Nonetheless, don’t confuse the period necessary to get through a recalcitrant Town Board with the period necessary for the Tenant to perform his due diligence. Add one of the following clauses:

In any event, Tenant shall diligently, continuously, and in good faith pursue such approvals as may be necessary for the intended use of the Premises.

or

Should Landlord reasonably require the assistance of legal counsel to create, review or negotiate any documents sought by Tenant, reasonable attorney’s fees for that assistance will be paid by Tenant within 30 days after an invoice for those fees is submitted to Tenant.

19.8.2 Suitability or Due Diligence Period The Tenant should not have an unlimited time to keep the property tied up without a rent payment. Suitability or due diligence should take no more than 30 to 45 days. It would be okay to give a potential Tenant at least that much time rent free. However, getting through the zoning process should be limited to three years, at most.

19.9 Rent Increases It is very common for the Lessee to offer increases of 15% every 5 years. While this element of the agreement is very much subject to arm wrestling (i.e., negotiation), there are two points you should understand: •

Fifteen percent every five years is not the same as 3% per year. It’s more like 2.7%. Ask, and you will probably find that the carrier will agree to 3% per year.

•

If you think inflation is going to be wild and crazy (do you remember the Ford Administration’s WIN—Whip Inflation Now—buttons?) or that the days of Jimmy Carter and 16% interest rates are coming back, you can always choose to use a Cost of Living increase. Here’s an example of such a clause, following the recommendation of the Bureau of Labor Statistics (http://stats.bls.gov/dolfaq/bls_ques7.htm):

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The CPI measures the average change in the prices paid for a market basket of goods and services. These items are purchased for consumption by the two groups covered by the index: All Urban Consumers (CPI-U) and Urban Wage Earners and Clerical Workers, (CPI-W). Escalation agreements often use the CPI—the most widely used measure of price change—to adjust payments for changes in prices. The most frequently used escalation applications are in private sector collective bargaining agreements, rental contracts, insurance policies with automatic inflation protection, and alimony and child support payments. The following are general guidelines to consider when developing an escalation agreement using the CPI: DEFINE clearly the base payment (rent, wage rate, alimony, child support, or other value) that is subject to escalation. IDENTIFY precisely which CPI index series will be used to escalate the base payment. This should include: The population coverage (CPI-U or CPI-W), area coverage (U.S. City Average, West Region, Chicago, etc.), series title (all items, rent of primary residence, etc.), and index base period (1982–84 ⫽ 100). SPECIFY a reference period from which changes in the CPI will be measured. This is usually a single month (the CPI does not correspond to a specific day or week of the month) or an annual average. There is about a 2-week lag from the reference month to the date on which the index is released (e.g., the CPI for May is released in mid-June). The CPIs for most metropolitan areas are not published as frequently as are the data for the U.S. City Average and the 4 regions. Indexes for the U.S. City Average, the 4 regions, 3 city-size classes, 10 region-by-size classes, and 3 major metropolitan areas (Chicago, Los Angeles, and New York) are published monthly. Indexes for the remaining 23 published metropolitan areas are available only on a bimonthly or semiannual basis. Contact the BLS address at the end of this fact sheet for information on the frequency of publication for the 26 metropolitan areas. STATE the frequency of adjustment. Adjustments are usually made at fixed time intervals, such as quarterly, semiannually, or, most often, annually. DETERMINE the formula for the adjustment calculation. Usually the change in payments is directly proportional to the percent change in the CPI index between two specified time periods. Consider whether to make an allowance for a “cap” that places an upper limit to the increase in wages, rents, etc., or a “floor” that promises a minimum increase regardless of the percent change (up or down) in the CPI. PROVIDE a built-in method for handling situations that may arise because of major CPI revisions or changes in the CPI index base period. The Bureau always provides timely notification of upcoming revisions or changes in the index base. The CPI and escalation: Some points to consider: The CPI is calculated for two population groups: All Urban Consumers (CPI-U) and Urban Wage Earners and Clerical Workers (CPI-W). The CPI-U represents about 87 percent of the total U.S. population and is based on the expenditures of all families living in urban areas. The CPI-W is a subset of the CPI-U and is based on the expenditures of families living in urban areas who meet additional requirements related to employment: more than one-half of the family’s income has to be earned from clerical or hourly-wage occupations. The CPI-W represents about 32 percent of the total U.S. population.

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There can be small differences in movement of the two indexes over short periods of time because differences in the spending habits of the two population groups result in slightly different weighting. The long-term movements in the indexes are similar. CPI-U and CPI-W indexes are calculated using measurement of price changes for goods and services with the same specifications and from the same retail outlets. The CPI-W is used for escalation primarily in blue-collar cost-of-living adjustments (COLAs). Because the CPI-U population coverage is more comprehensive, it is used in most other escalation agreements. The 26 metropolitan areas for which BLS publishes separate index series are by-products of the U.S. City Average index. Metropolitan area indexes have a relatively small sample size and, therefore, are subject to substantially larger sampling errors. Metropolitan area and other subcomponents of the national indexes (regions, size-classes) often exhibit greater volatility than the national index. BLS strongly recommends that users adopt the U.S. City Average CPI for use in escalator clauses. The U.S. City Average CPIs are published on a seasonally adjusted basis as well as on an unadjusted basis. The purpose of seasonal adjustment is to remove the estimated effect of price changes that normally occur at the same time and in about the same magnitude every year (e.g., price movements due to the change in weather patterns, model change-overs, holidays, end-ofseason sales, etc.). The primary use of seasonally adjusted data is for current economic analysis. In addition, the factors that are used to seasonally adjust the data are updated annually. Also, seasonally adjusted data that have been published earlier are subject to revision for up to 5 years after their original release. For these reasons, the use of seasonally adjusted data in escalation agreements is inappropriate. Escalation agreements using the CPI usually involve changing the base payment by the percent change in the level of the CPI between the reference period and a subsequent time period. This is calculated by first determining the index point change between the two periods and then the percent change. The following example illustrates the computation of percent change: CPI for current period Less CPI for previous period Equals index point change Divided by previous period CPI Equals Result multiplied by 100 Equals percent change

136.0 129.9 6.1 129.9 0.047 0.047 ⫻ 100 4.7

The Bureau of Labor Statistics neither encourages nor discourages the use of price adjustment measures in contractual agreements. Also, while BLS can provide technical and statistical assistance to parties developing escalation agreements, we can neither develop specific wording for contracts nor mediate legal or interpretive disputes which might arise between the parties to the agreement. For any additional information about the CPI, please call (202) 691-7000, or write to: Bureau of Labor Statistics Office of Prices and Living Conditions 2 Massachusetts Avenue, NE., Room 3615 Washington, D.C. 20212-0001

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Here is a CPI clause that was negotiated for one whip antenna on a tower. For the period ending [month] [last day of month], [year], the Base Fee shall be $350 per month. During each one year renewal period, the Base Fee payable immediately prior to the renewal date shall be adjusted by the total change, if any (expressed as a percentage), in the Consumer Price Index (CPI) for the month of the expiration date of the Initial Term or current renewal period, as the case may be, compared to the CPI for the same month of the preceding year. Nonetheless, in no event shall the Base Fee payable during any renewal period be less than the Base Fee payable for the immediately prior period. CPI as used herein shall mean the Consumer Price Index published by the Bureau of Labor Statistics of the United States Department of Labor, for All Urban Consumers, All Items (1982–1984 ⫽ 100), for the area called “Northeast Urban” (CPI-U) “All items” or an equivalent successor official index then in effect. In the event that the Bureau of Labor Statistics changes the form or basis for the computation of the CPI, a reliable governmental or other non-partisan publication of Landlord’s choice evaluating substantially the same information previously used in determining the CPI shall be used. No adjustments or recomputations, retroactive or otherwise, shall be made due to any revision which may later be made in the first published figure of the CPI.

19.10 Interference Everyone thinks interference is an important issue. However, the drafting of interference clauses varies significantly.

Carrier 2 lease 8. Interference. (a) Where there are existing radiofrequency user(s) on the Property, the Landlord will provide Tenant with a list of all existing radiofrequency user(s) on the Property to allow Tenant to evaluate the potential for interference. Tenant warrants that its use of the Premises will not interfere with existing radiofrequency user(s) on the Property so disclosed by Landlord as long as the existing radiofrequency user(s) operate and continue to operate within their respective frequencies and in accordance with all applicable laws and regulations. (b) With respect to radiofrequency interference or access to equipment or any other activity that interferes with Tenant’s rights under this Agreement, Landlord will not grant, after the date of this Agreement, a lease, license, or any other right to any third party for the use of the Property, if such use may in any way adversely affect or interfere with Tenant’s Communication Facility. Landlord will notify Tenant in writing prior to granting any third party the right to install and operate communications equipment on the Property. Nothing contained herein will restrict Tenant nor its successors and assigns from installing and modifying its communications equipment, so long as such modification does not increase wind load. Tenant warrants it will operate in accordance with all applicable laws and regulations and within its respective frequencies.

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(c) Landlord will not use, nor will Landlord permit its employees, tenants, licensees, invitees, or agents to use, any portion of the Property in any way which interferes with the operations of Tenant or the rights of Tenant under this Agreement. Landlord will cause such interference to cease within a commercially reasonable period of time, not to exceed seventy two (72) hours after receipt of notice of interference from Tenant. In the event any such interference does not cease within the aforementioned cure period then the parties acknowledge that Tenant will suffer irreparable injury, and therefore Tenant will have the right, in addition to any other rights that it may have at law or in equity, for Landlord’s breach of this Agreement, to elect to enjoin such interference or to terminate this Agreement upon notice to Landlord.

Carrier 5 lease Interference. LESSEE agrees to have installed radio equipment of the type and frequency which will not cause measurable interference to the equipment existing as of the date this Agreement is executed by the Parties of the LESSOR or other LESSEEs of the Property. In the event LESSEE’s equipment causes such interference, and after LESSOR has notified LESSEE of such interference, LESSEE will take all steps necessary to correct and eliminate the interference. LESSOR agrees that LESSOR and any other tenants of the property who currently have or in the future take possession of the Property will be permitted to install only such radio equipment that is of the type and frequency which will not cause measurable interference to the existing equipment of the LESSEE. The parties acknowledge that there will not be an adequate remedy at law for noncompliance with the provisions of this paragraph and therefore, either Party shall have the right to specifically enforce the provisions of the paragraph in a court of competent jurisdiction.

Carrier 6 lease Interference. Landlord shall not use, nor shall Landlord permit its tenants or Tenants to use, any portion of the Property in any way that interferes with the operations of Tenant. Such interference shall be deemed a material breach by Landlord, and Landlord shall have the responsibility to promptly cause any such interference to be eliminated. If said interference cannot be eliminated within twenty-four (24) hours after receipt of notice that such interference is occurring, Landlord shall discontinue or cause to be discontinued the operation of any equipment causing the interference until the same can be corrected, except for such intermittent operation as may be necessary for the purposes of testing, after action has been taken for the purposes of correcting such interference. In the event any such interference does not cease promptly, Tenant shall have the right, in addition to any other right that it may have at law or in equity, to enjoin such interference or to terminate this Lease.

Here’s language that has been accepted in some leases: In any event, Landlord and Tenant each acknowledge that discovering the source of interference and the party at fault can be difficult, if not impossible, and that should interference occur to any Tower User, each agrees to cooperate with the other to the fullest extent that is commercially reasonable to discover and cure any RF interference.

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A public radio station as Tenant 13. Interference. 13.1. LESSEE’s Obligation to Cure. LESSEE shall operate the LESSEE’s facilities in a manner that will not cause interference to LESSOR and other pre-existing FCC licensed LESSEES, Tower Users, or licensees of the Property, provided that their installations predate that of the LESSEE’s facilities and are operated in accordance with the FCC license authorized for the installation. LESSEE has determined that its equipment will be compatible with the pre-existing FCC licensed Tower Users based upon an “intermod” study (a study of intermodulation) performed during the negotiation period. LESSEE agrees to immediately cure any such interference to other FCC licensed and authorized facilities at the site or, if such interference cannot immediately be cured, to temporarily reduce power or cease the offending operations if so demanded by LESSOR on the grounds of interference, until a cure at full power is achieved; provided nothing in this section is intended to supercede the requirements of unlicensed Part 15 devices to receive incoming interference and for which no cure is mandated by FCC regulations. LESSOR covenants to use LESSOR’s best efforts to protect LESSEE from interference caused or potentially caused by subsequent users or changes in the use. Adherence to the FCC rules and chronological incumbency as to frequencies, power levels, and physical connections and device locations, and requirements by unlicensed operations to permit received interference as stated in FCC rules governing Part 15 devices (specifically Part 15.5(c)) are hereby agreed to be determinative in resolving interference disputes and LESSOR shall take reasonable action to assist LESSEE in resisting claims which violate this standard. LESSEE recognizes LESSOR’s right to allow additional equipment to be added to the Tower subject to the structural limitations of the Tower, as well as applicable FCC and FAA rules and regulations. All operations by LESSEE shall be in compliance with all Federal Communications Commission (“FCC”) requirements. [inserted by the Public Radio FM station] Subsequent to the installation of the LESSEE facilities, LESSOR shall not permit itself, its LESSEEs, or licensees to install new equipment on the Property or property contiguous thereto owned or controlled by LESSOR, if such equipment is likely to cause interference with LESSEE’s operations. LESSEE shall deem such interference a material breach. In the event interference occurs, LESSOR agrees to take all action necessary to eliminate such interference, in a reasonable time period. In the event LESSOR fails to comply with this paragraph, LESSEE may terminate this AGREEMENT, and/or pursue any other remedies available under this AGREEMENT, at law and/or at equity. LESSEE must obtain an intermodulation study from a licensed professional engineer and a structural tower study, subject to LESSOR’s approval, before installation of equipment. 13.2. Subsequent Installations. In the event that transmitting or receiving devices installed on the telephone poles or the Property in the future by any subsequently authorized user shall interfere with LESSEE’s communications signals, LESSEE shall cooperate with such user in eliminating interference by assisting the subsequent user in identifying the source, extent and nature of the interference and modifying equipment where feasible, except interference to those devices governed by Federal Communications Commission Rules governing the operation of Part 15 devices. LESSEE will not

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incur cost to modify equipment, if such modification is necessary. LESSOR shall ensure that the subsequent authorized user shall be required to cease its operations if the interference cannot be eliminated as a result of its efforts. Nothing in this Paragraph shall be construed to prohibit LESSOR or exempt LESSEE from complying with duly authorized governmental requests for priority use of the site in cases of federal, state, or local emergency.

If there is interference, Lessor should be able to shut down Lessee’s facilities if they are not repaired to eliminate interference. Eliminating interference should have a time deadline much shorter than the usual 30-day cure allowed for other matters. You’ll note the language excepting Part 15 devices. No one should have to protect Part 15 devices. Issues of “blanketing interference” are beyond the scope of this book. Nonetheless, if you are a broadcaster, you’ll need an engineer familiar with the “blanketing interference” rules.

19.11 Airtime Loss From public radio FM as Tenant lease LESSOR shall not be held liable or responsible for airtime losses or any other consequential damages sustained for any reason by LESSEE under this AGREEMENT or its rights hereunder. If any claim is made against LESSOR by LESSEE’s client, customer, or other third party for air time losses and damage arising out of or resulting from such losses, LESSEE shall indemnify and hold harmless LESSOR for all losses and expenses incurred by LESSOR including but not limited to all costs of defense.

From a daytime AM lease (where Landlord is a broadcaster) Neither party shall be liable to the other for any incidental, indirect, special, or consequential damages, including, without limitation, loss of airtime, lost profits or revenues, resulting from or occurring in connection with this Agreement or any breach hereof.

19.12 Assignment or Sublet Assignment and sublet are really two different issues.

19.12.1 Assignment Financial strength is not the only issue that you might have with an assignee. What if he’s a crook, sleaze, or just a difficult person (or corporation)? While the Lessee will never agree to absolute ability to deny transfer, the usual compromise language is that “no assignment may be made without approval of the Lessor, which approval shall not be unreasonably (1) delayed beyond thirty (30) days, (2) withheld, or (3) denied.” The trade-off here is that the Lessee has invested a lot of money in

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engineering, permitting, as well as building a road, building and tower. But, perhaps the rent should “go to market” (meaning to a then-current market price) when the property is sold or a change of ownership occurs. Suggested additional language Notwithstanding the foregoing, where Landlord believes, in its sole discretion, that a prospective assignee presents a credit risk, approval of assignment may be withheld.

From a Carrier 3 lease 1(a). Assignment by Tenant. Affiliate Assignment Tenant shall have the right to assign or otherwise transfer this Lease and the Easements (as defined above) granted herein upon written notice to Landlord, provided that the assignee (i) is FCC licensed to operate a wireless communications business; (ii) is a parent, subsidiary, or affiliate of Tenant or Tenant’s parent; (iii) is merged or consolidated with Tenant; or (iv) acquires more than fifty percent (50%) of either an ownership interest in Tenant or the assets of Tenant in the “Metropolitan Trading Area” or “Basic Trading Area” (as those terms are defined by the FCC) in which the Property is located. Upon such assignment, Tenant shall be relieved of all liabilities and obligations hereunder and Landlord shall look solely to the assignee for performance under this Lease and all obligations hereunder. Tenant may sublease the Premises, upon written notice to Landlord. (2). Non-affiliate Assignment. Tenant may otherwise assign this Lease only upon written approval of Landlord.

19.12.2 Sublet The Lessor/Landlord deserves something, perhaps 20% to 50% of any sublet. In a build-to-suit, it is understandable that an override might not kick in until the third or fourth Tenant. If a long driveway is necessary (i.e., construction costs are great), it might well be the fourth Tenant.

19.13 Utilities 19.13.1 Construction An owner deserves some control over construction, blasting, tree cutting, etc. Utilities should be subject to approval of routing and construction, submitted in advance, but with no more than 7 to 21 days to consider it (unless the owner is unavailable) or it may be considered approved. Approval should not be unreasonably withheld, denied, or delayed. The problem in picking a length of time is that the time should be short, so the project can go forward, but the time should be long enough so the owner can take a 14- to 20-day vacation without fear of inappropriate construction.

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Suggested wording With respect to construction for utilities, such construction is subject to Landlord’s approval of routing and construction. Plans for such routing and construction shall be submitted in advance, and Landlord shall have at least seven (7) [twenty-one (21)] days to consider the proposal (unless Landlord is unavailable at the time of submission). Lack of response by Landlord when Landlord has seven (7) [twenty-one (21)] days’ actual notice and time for consideration may be considered approval. In any event, approval shall not be unreasonably withheld, denied or delayed.

19.13.2 Timeliness of Payments If the tower owner has to pay utilities and recover those costs from the Tenant, the Tenant has no right to expect that the tower owner will loan the money to the tenant. The Tenant should pay within 20 days, so the tower owner can pay on time. There is an alternative, of course. If the Landlord must advance the payment, the Landlord should be entitled to some interest on the payment. The Landlord should not be the Tenant’s bank! See discussion above about late fees.

19.14 Amendment From public radio FM as Tenant lease This AGREEMENT may not be modified or amended except by written AGREEMENT signed by both parties.

This is a totally normal, expectable condition found in almost every lease. No one wants side deals cut by local maintenance people to control the tenancy for such long periods of time.

19.15 Force Majeure If the tower is hit by an airplane or a hurricane, it may take a while to re-erect and for the rents to start flowing again. However, think of the worst case possible and establish a period of time after which the Tenant should resume lease payments. So, for example, if the tower falls over on the day before the ground freezes, the Tenant should still be required to resume lease payments five months later, when the ground becomes workable again. That’s 5 ⫻ 30, or 150 days later. So rent may be suspended for a period not to exceed 150 days. If rent is not paid for 150 days, or so, the landowner should have the power to terminate the lease.

19.16 Indemnification or Indemnity Indemnification should be completely two-way. Watch out for gross negligence or intentional acts. Survival (see Carrier 1’s agreement) is a good thing. Note that there are two ways of drafting indemnification clauses: one paragraph that is completely mutual or two separate paragraphs.

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Language from Carrier 2, paragraph 9, separate subsections Indemnification. (a) Tenant agrees to indemnify, defend, and hold Landlord harmless from and against any and all injury, loss, damage or liability (or any claims in respect of the foregoing), costs or expenses (including reasonable attorneys’ fees and court costs) arising directly from the installation, use, maintenance, repair, or removal of the Communication Facility or Tenant’s breach of any provision of this Agreement, except to the extent attributable to the negligent or intentional act or omission of Landlord, its employees, agents, or independent contractors. (b) Landlord agrees to indemnify, defend, and hold Tenant harmless from and against any and all injury, loss, damage or liability (or any claims in respect of the foregoing), costs or expenses (including reasonable attorneys’ fees and court costs) arising directly from the actions or failure to act of Landlord or its employees or agents, or Landlord’s breach of any provision of this Agreement, except to the extent attributable to the negligent or intentional act or omission of Tenant, its employees, agents, or independent contractors. (c) Notwithstanding anything to the contrary in this Agreement, Tenant and Landlord each waive any claims that each may have against the other with respect to consequential, incidental, or special damages.

Language from Carrier 5, one consolidated paragraph 12. Indemnification. Each Party shall indemnify and hold the other harmless against any claim of liability or loss from personal injury or property damage resulting from or arising out of the use and occupancy of the Premises or the Property by the Party, its servants or agents, excepting, however, such claims or damages as may be due to or caused by the acts or omissions of the other Party, or its servants or agents.

Language from Carrier 1, one consolidated paragraph 14. Liability and Indemnity. Landlord and Tenant shall each indemnify, defend, and hold the other harmless from and against all claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ and consultants’ fees, costs, and expenses) (collectively “Losses”) arising from the indemnifying party’s breach of any term or condition of this Agreement or from the negligence or willful misconduct of the indemnifying party’s agents, employees, or contractors in or about the Property. The duties described in this Paragraph 14 shall apply as of the Effective Date of this Agreement and survive the termination of this Agreement.

19.17 Hazardous Substances or Material The Lessee should not introduce any uncontained hazardous substances to the property. If he does, you must be indemnified. What happens if they spill gasoline or diesel fuel (used to power a generator)? It

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should be the responsibility of party that spills. Any environmental indemnification clause should be mutual.

From public radio FM as Tenant lease 9. Hazardous Substances. LESSEE agrees that it will not use, generate, store, or dispose of any hazardous materials on, under, about or within the Property in violation of any law or regulation. LESSOR represents, warrants, and agrees (a) that neither LESSOR nor, to LESSOR’s knowledge, any third party has used, generated, stored, or disposed of, or permitted the use, generation, storage, or disposal of any hazardous material on, under, about, or within the Property in violation of any law or regulation, and (b) that LESSOR will not, and will not permit any third party to, use, generate, store, or dispose of any hazardous material on, under, about, or within the Property in violation of any law or regulation.

19.18 Underground Storage Tank Some leases require the Landlord to certify that there is no underground storage tank on the premises. This is a wholly rational request. Be sure to find out the answer before signing the lease. If there is one, there are two answers: indemnification or removal. My advice? Remove it before it gets even costlier.

19.19 Insurance 19.19.1 General Liability While $1 million to $2.5 million of commercial general liability (CGL) coverage seems reasonable today, it should not only be reviewed periodically but also increased as necessary in light of current conditions, especially if the lease is for 25 to 40 years! Should the parties disagree on the type, amount, and coverage of insurance, it should all be subject to mandatory arbitration.

Suggested language The limits amount shall be reviewed at least at the start of each renewal term, and sooner if appropriate, and thereupon increased as appropriate, to reflect then existing comparable general liability risks and exposures.

From a prominent national tower company Landlord/Licensor reserves the right, from time to time, to increase the required liability limits of Tenant described above, in accordance with then-current customary insurance requirements in the tower industry nationally.

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Suggested language combining elements of the above two Landlord/Licensor reserves the right, from time to time, to increase the required liability limits of Tenant described above, to appropriately reflect then existing general liability risks and exposures.

Version Carrier 1 has accepted (v) Review of Limits. Landlord reserves the right, from time to time, to increase the required liability limits of Tenant described above, in accordance with then-current customary insurance requirements in the tower industry nationally.

Example where Carrier 1 was willing to specify a new rate after a while, but would not go “open-ended” 12. Insurance. Tenant, at Tenant’s sole cost and expense, shall procure and maintain on the Premises and on the Tenant Facilities, bodily injury and property damage insurance with a combined single limit of at least Two Million and 00/100 Dollars ($2,000,000.00) per occurrence provided; however, the Landlord may, during the Term hereof, by written notice given to Tenant, increase the amount of insurance coverage required to be maintained hereunder to Five Million and 00/100 Dollars ($5,000,000.00), which amount may be maintained under an umbrella policy. Such insurance shall insure, on an occurrence basis, against liability of Tenant, its employees and agents arising out of or in connection with Tenant’s use of the Premises, all as provided for herein. Landlord, at Landlord’s sole cost and expense, shall procure and maintain on the Property, bodily injury and property damage insurance with a combined single limit of at least One Million and 00/100 Dollars ($1,000,000.00) per occurrence, plus an additional One Million and 00/100 Dollars ($1,000,000.00), which amount may be maintained under an umbrella policy, provided, however, if Landlord shall give notice increasing the amount of insurance Tenant is required to maintain hereunder, Landlord’s total insurance obligation shall be increased to Five Million and 00/100 Dollars ($5,000,000.00), which amount may be maintained under a combination of bodily injury and property damage coverage plus an umbrella policy. Such insurance shall insure, on an occurrence basis, against liability of Landlord, its employees and agents arising out of or in connection with Landlord’s use, occupancy and maintenance of the Property. Each party shall be named as an additional insured on the other’s policy. Each party shall provide to the other a certificate of insurance evidencing the coverage required by this paragraph within thirty (30) days of the Commencement Date.

Version Carrier 3 has accepted 11(a) Tenant and Landlord each will maintain Commercial General Liability Insurance in amounts of One Million and no/100 Dollars ($1,000,000.00) per occurrence and Two Million and no/100 Dollars ($2,000,000.00) aggregate. Each party may satisfy this requirement by obtaining the appropriate endorsement to any master policy of liability insurance such party

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may maintain. Landlord reserves the right, from time to time, to increase the required liability limits of Tenant described above, in accordance with then-current customary insurance requirements in the tower industry nationally.

Version Carrier 4 has accepted (v) Review of Limits. Landlord reserves the right, from time to time, to increase the required liability limits of Tenant described above, in accordance with then-current customary insurance requirements in the tower industry nationally.

19.19.2 Other Insurance Requirements So you won’t be surprised, here are some other typical insurance clauses: From public radio FM as lessor/tower owner 12.2. Property Insurance. LESSEE shall maintain, at LESSEE’s expense, insurance against loss or damages to LESSEE’s equipment, including, without limitation, loss or damage from fire, vandalism, malicious mischief, and acts of God. 12.3. Worker’s Compensation Insurance. Throughout the term of this AGREEMENT, LESSEE shall maintain worker’s compensation insurance for its employees who work at the Property and shall require worker’s compensation certificates from any contractor or agent hired to construct or install its equipment at the Property. 12.4. Certificates of Insurance. Each insurance policy required under this AGREEMENT will provide minimum limits of One Million Dollars ($1,000,000) per personal injury or death. LESSEE shall name LESSOR as additional insured under each policy. Said insurance may be in the form of general coverage or floating policies covering these and other property. Upon execution of this AGREEMENT, LESSEE shall furnish to LESSOR certificates of insurance for each of the insurance policies required by this section. Such insurance shall be obtained from insurance companies acceptable to LESSOR and authorized to do business in State. Each such certificate shall provide that the insurance indicated therein shall not be cancelled or changed without at least thirty (30) days’ prior written notice to the additional insureds.

19.20 Default and Right to Cure The opportunity to cure a default, after notice of the default, is normal. However, the clause should be bilateral or mutual, not unilateral. Thus, for example, if the road to the site is blocked, the Landlord should have some time to unblock the road before the lease is cancelled. In any event, however, whatever cure period is chosen should not apply to interference.

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Tricks: A default on the payment of rent should be cured within 30 days after notice. Other forms of default, whether by Landlord or Tenant, should have the same number of days to cure (usually 60 or 90 days). But, the number of days should be equal for each party. As to RFI, refer to the RFI clause, so that the general default clause does not apply. Watch out for things that are hard to cure promptly. For example, a problem on a mountaintop in the dead of winter, occurring on December 15, might take more than 90 days to cure. If the Tenant can cure the problem at Landlord’s expense, the “reasonable” cost of curing in the dead of winter could be very high (involving helicopters and such). The following is usually acceptable: If the non-performance is of such a character as to require more than ninety days to cure, then Landlord’s (or Tenant’s) failure to use reasonable diligence in curing such nonperformance during such longer period shall be an event of default. Here’s a real-life example of splitting up default and cure into categories. From a Carrier 3 lease 9. Default and Right to Cure. (a) Generally Notwithstanding anything contained herein to the contrary and without waiving any other rights granted to it at law or in equity, each party shall have the right, but not the obligation, to terminate this Lease on written notice pursuant to Section 12 hereof, to take effect immediately, if the other party fails to perform any covenant or commits a material breach of this Lease and fails to diligently pursue a cure thereof to its completion after thirty (30) days’ written notice specifying such failure of performance or default. (b) Rent As to rent due to Landlord, the opportunity to cure a default shall be thirty (30) days. (c) Radio Frequency Interference (RFI) As to Radio Frequency Interference, see paragraph 6(b).

19.21 Notices Using the U.S. Postal Service or recognized overnight carrier (even if not overnight) should be okay. Also, this clause should require a copy to your attorney or renting agent, or to whomever else you designate. This way you have less chance of missing an important notice. Suggested language . . . or by recognized overnight carrier with a comparable acknowledgement of receipt

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This paragraph should also specify that you can change the addresses to which notice shall be sent: . . . or to such other address as may be subsequently designated in writing, notice of which change of address shall be given in the same manner.

Carrier 2 form Notices. All notices, requests, demands, and communications hereunder will be given by First Class certified or registered mail, return receipt requested, or by a nationally recognized overnight courier, postage prepaid, to be effective when properly sent and received, refused, or returned undelivered. Notices will be addressed to the parties as follows. As to Tenant, c/o Carrier 2, Attn: Network Real Estate Administration Re: Cell Site # ME1234, Cell Site Name SST Sabattus, Address, State Zip, with a copy to Carrier 2, Attn: Legal Department, Address, State Zip, Re: Cell Site # ME1234, Cell Site Name SST Sabattus, PTLDME 1234; and as to Landlord, Strong Signals, 6 Willarch Road, Lincoln, MA 01773. Either party hereto may change the place for the giving of notice to it by thirty (30) days’ prior written notice to the other as provided herein.

19.22 Quiet Enjoyment, Title, and Authority A paragraph dealing with such matters is not the right place (within a lease) for a Tenant to try to sneak in exclusivity for communications, but one supposes that, from the Lessee’s perspective, there is no harm in trying. I mention this only because I’ve seen a Tenant try to slip into the paragraph on quiet enjoyment an exclusivity for communications uses. If you are the tower owner, you’d never want to give a Tenant exclusivity for communications, radio broadcasting, or any such thing.

19.22.1 Fee Simple Be careful, the Landlord may be a Tenant itself, unable to warrant that it owns the property in fee simple. Carrier 1 lease, with suggested modification 16. Warranty of Title and Quiet Enjoyment. Landlord warrants that: (i) Landlord has such interest in the Property as is evidenced in the Prime Lease, see Exhibit A, and has rights of access as therein described, and Landlord’s leasehold interest is free and clear of all liens, encumbrances, and restrictions except those of record as of the Effective Date; and (ii) Landlord covenants and agrees with Tenant that Tenant may peacefully and quietly enjoy the Premises, provided that Tenant is not in default hereunder after notice and expiration of all cure periods.

Carrier 1 (as accepted) (iii) Quiet Enjoyment. The Landlord covenants and agrees with the Tenant that, so long as the Tenant keeps and performs all of the covenants and conditions required of the Tenant under this Lease Agreement to be performed and kept, then the Tenant shall have quiet and undisturbed and continued possession of the Premises, free from any interference by Landlord or any claim against the Landlord and all persons claiming under, by or through the Landlord.

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From a Carrier 2 lease (iii) As long as Tenant is not in default then Landlord grants to Tenant sole (except as to Premises which are non-exclusive), actual, quiet, and peaceful use, enjoyment, and possession of the Premises . . . [Note: Tenant is not entitled to sole possession of the non-exclusive accessway or tower legs where coax rises to the antennas.]

From a Carrier 7 lease Landlord covenants that at all times during the term of this Lease, Tenant’s quiet enjoyment of the Premises or any part thereof shall not be disturbed as long as Tenant is not in default beyond any applicable grace or cure period.

19.23 Termination See also Section 19.4, Term.

19.23.1 Condition of Property on Surrender/Removal of Equipment Where the carrier (Tenant) constructed the tower on land you own, you must consider what should happen when the lease comes to an end. Normally, the only real question is who gets the tower. The best idea for the landowner: Landowner’s Choice. A removal bond is nice after the tower is old and may be unsafe, but generally not required, as there is an active market in used towers. Separately, if the lease calls for the return of the land to the condition before the letting, do you really want the road removed if it is against your interest? On the other hand, you might absolutely want the crumbling blockhouse or concrete equipment housing removed. Here’s a hint: Carrier 2 will remove foundations for the tower and guy anchors, down to two feet below ground (maybe four feet), but not all of it. On the other hand, you probably do want any space in an equipment shed you own restored to marketable condition (i.e., ready to rent). Here’s some wording that is even-handed.

From a public radio FM as Tenant lease 10. Removal of Equipment. LESSEE shall be solely responsible for removal of all its antennas, equipment, fittings, cables, and every article of LESSEE’s property from LESSOR’s facilities, Building, telephone poles, and Property upon termination or expiration of this AGREEMENT. Said removal shall occur within a reasonable time not to exceed thirty (30) days from the date of termination or expiration. Title to any property not removed within thirty (30) days of termination or expiration shall vest in

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LESSOR unless LESSEE has obtained, prior to expiration of such period, written consent from LESSOR for an extension of time within which to remove such equipment. Subject to the terms of Paragraph 10, LESSEE shall assume responsibility for the cost and expense of restoring the Property to a marketable condition, reasonable wear and tear excepted.

We now enter that portion of a lease frequently entitled “Miscellaneous.” If you are not a close reader, sometimes mischief can be done in these sections. Nonetheless, here are some typical issues.

19.24 Consent From public radio FM as Tenant lease Whenever action, consent, or approval of either party is required, that party shall not unreasonably withhold or delay such consent or approval.

19.25 Execution From public radio FM as Tenant lease From and after the date of this AGREEMENT, the parties hereto agree to promptly execute, acknowledge, and deliver, or cause to be executed, acknowledged, and delivered, all such instruments or documents and to take all actions pursuant to the provisions hereof as may reasonably be necessary or proper in order to carry out the intent of both parties of this AGREEMENT.

Caution: No one should give the other side a power of attorney. That’s too dangerous. But, a party should have the comfort of knowing that the other side can’t ask for money to do what they ought to be doing anyway.

19.26 Counterparts From public radio FM as Tenant lease This AGREEMENT has been signed in multiple copies, each of which shall stand as an original.

Everyone deserves an “original.” Don’t be surprised if you eventually sign up to four “originals.”

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19.27 Severability From public radio FM as Tenant lease The terms, conditions, covenants, and provisions of this AGREEMENT shall be deemed to be severable. If any clause or provisions herein contained shall be adjudged to be invalid or unenforceable by a court of competent jurisdiction or by operation of any applicable law, it shall not affect the validity of any other clause or provision herein, but such other clauses or provisions shall remain in full force and effect.

This language, known as a “severability clause,” is totally ordinary.

19.28 Captions From public radio FM as Tenant lease No caption or heading shall be used to have meaning separately or in addition to the terms of this AGREEMENT.

This is another ordinary clause, designed to prevent mischief in captions that was not intended. Only the words of the text control.

19.29 Applicable Law or Choice of Law From public radio FM as Tenant lease This AGREEMENT shall be governed by the laws of the State of [Name of State].

It almost doesn’t matter what law is chosen to apply, but the routine in the industry is that the law of the state in which the antenna-support structure is located should apply. Specifying which state’s law applies is always a good idea. National carriers, not wishing to take a chance that a busy paralegal might forget to enter the correct state in a standard lease, typically use language like this:

This Lease shall be construed in accordance with the laws of the state in which the Property is located, without regard to the conflicts of law principles of such state.

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19.30 Arbitration From public radio FM as Tenant lease Any and all claims arising hereunder shall be subject exclusively to binding arbitration. Any demand for arbitration hereunder shall be presented to an arbitrator mutually selected by the parties, which arbitrator shall be instructed to endeavor to deliver, within 60 days thereafter, a final, binding, and conclusive decision upon each of the parties. In the event that the parties cannot agree on the selection of an arbitrator within 15 days after service of a written demand for arbitration, either party may request the American Arbitration Association to appoint an arbitrator, and such appointment shall be final, binding, and conclusive on the parties. Promptly after acceptance of its appointment as arbitrator, the arbitrator shall determine the disputed issues and shall render a written report to the parties. Unless otherwise agreed by the parties in writing, the arbitration shall be conducted in [the state capital]. The arbitrator’s decision shall be final, binding, and conclusive on all parties. The parties shall cooperate with each other and each other’s representatives and with the arbitrator in order that any and all matters in dispute shall be resolved as soon as practicable. The fees, costs, and expenses of such arbitrator incurred in connection therewith shall be shared equally between the parties unless ordered otherwise by the arbitrator. Nothing herein shall bar either party from applying to a court of competent jurisdiction within the State of [name of State] to obtain solely injunctive relief pending arbitration, or to enforce an arbitration award. Acknowledgement of Arbitration Each party acknowledges that this AGREEMENT contains an AGREEMENT to arbitrate. After signing this AGREEMENT each party understands that it will not be able to bring a lawsuit concerning any dispute that may arise which is covered by the Arbitration Agreement, unless it involves a question of constitutional or civil rights. Instead, the parties agree to submit any such dispute to an impartial board, as herein defined.

You might wish to allow the use of neutral arbitrators other than the AAA (American Arbitration Association), but, if you want arbitration, you’ll still want to specify the city in which the arbitration will be heard. Pick a place where it is easy for the arbitrator to show up and easy for you to get there. That may be the state capital (Austin) or a populous city (Dallas or Houston).

19.31 Subordination, Non-Disturbance, and Attornment Agreement (SNDAA) 19.31.1 Agree to It The Landlord must grant this in order for the Lessee to get a bank loan to finance the construction, but subordination is not the same thing as giving up all claims. Suppose that the company stops making rent payments. Why shouldn’t the Landlord have the right to take a lien on the equipment on site? But, there is another way to prevent the equipment from leaving the site.

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From Carrier 4 agreement Furthermore, all improvements constructed or installed by SUBLESSEE shall be removable by SUBLESSEE at the expiration or earlier termination of this Agreement, provided SUBLESSEE shall not at such time be in default under any covenant or agreement contained in this Agreement. SUBLESSEE, upon termination of this Agreement, shall, within ninety (90) days, remove all improvements, fixtures, and personal property constructed or installed on the Premises by SUBLESSEE and restore the Premises to substantially the same condition as received, reasonable wear and tear and damage by insured casualty excepted. It is hard for a representative of a Tenant to say to you, with a straight face: “We’re leaving. We haven’t repaired the damage we did or paid the rent we owe, but we’re taking everything away anyway.” The Landlord is entitled to some way, other than a lawsuit, to force the Tenant to do the right thing.

19.31.2 Make it an Exhibit A sample SNDAA, even though it has a lot of blanks (you don’t yet know the name of the bank that will one day be involved, for example) should appear as an Exhibit, and the lease should require that the SNDAA be “in form substantially similar to” it.

19.31.3 Pay to Review Who pays for counsel to review the agreements to ensure that these documents, for the benefit of the Tenant (and not the Landlord), do not reduce the Landlord’s rights? Tenant should. In today’s dollars, $250 to $500 should cover it. A review fee representing one to two hours of time (the combined time necessary for review by LESSOR and counsel for LESSOR), currently $250 to $500, may be required.

19.31.4 When Required? Carrier 2 Lease 10. Warranties. ... (b)(v) If the Property is or becomes encumbered by a deed to secure a debt, mortgage, or other security interest, Landlord will provide promptly to Tenant a mutually agreeable Subordination, Non-Disturbance, and Attornment Agreement. Change to: (b)(v) If the Property is or becomes encumbered by a deed to secure a debt, mortgage, or other security interest, upon Tenant’s written request to Landlord’s Notice address, Landlord will provide promptly to Tenant a mutually agreeable Subordination, Non-Disturbance, and Attornment Agreement (SNDAA), in form substantially similar to Exhibit 3.

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From the perspective of the Landlord, this concept was improved even more in a later lease:

In the event the Property is encumbered by a mortgage or deed of trust, Landlord agrees, upon request of Tenant, to obtain and furnish to Tenant a non-disturbance and attornment agreement for each such mortgage or deed of trust, in a form reasonably acceptable to Tenant. The cost for Landlord to review such an agreement, up to $250 (which cost maximum shall increase at the same rate of annual increase as the rent), shall be at the expense of Tenant.

That is about as good a deal as you could ever get from a Tenant, but it is fair. You don’t want to wipe out a year’s profits because the Tenant is changing something, something that requires a review by Landlord’s counsel. Some national tower companies charge $1,000 for a review, or something like “the ordinary and necessary expense of legal review.”

19.32 Taxes The landowner should not pay any increase in real estate or personal property taxes due to the presence of the antenna-support structure, antennas, equipment shed, or equipment. Furthermore, it wouldn’t hurt to make it plain that any sales taxes due as a result of the operations on the property are the responsibility of the Tenant(s). When the Tenant explains that there is no such thing as a sales tax on communications, the Landlord should reply: “Yes, but perhaps what I should really say is ‘not yet.’” Remember, with modern computerization, every text message, every call (even if only a momentary use of a cell from a passing vehicle) creates a record, and your friendly lawmakers, in search of revenue, are always looking for things to tax. Keep it quiet, please, but, as a Landlord, it is something you need to think about.

Suggestion Taxes. Upon presentation of sufficient and proper documentation, Tenant will pay all personal property or sales taxes assessed on, or any portion of, such taxes attributable to the Communications Facility [LESSEE’s Communications Equipment]. Upon presentation of sufficient and proper documentation, Tenant shall also reimburse Landlord for any increases, of any kind, in taxes or fees which are assessed as a direct result of Tenant’s improvements to the Premises. Tenant shall have the right to contest all taxes, assessments, charges, and impositions, and Landlord agrees to join in such contest, if required by law, and to permit Tenant to proceed with the contest in Landlord’s name, provided that the expense of the contest is borne by Tenant.

From Carrier 5 LESSOR shall pay all real property taxes it is obligated to pay on LESSOR’s Property. Upon presentation of sufficient and proper documentation, LESSEE will pay all personal property or

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sales taxes assessed on, or any portion of, such taxes attributable to, LESSEE’s Communications Equipment. Upon presentation of sufficient and proper documentation, LESSEE shall also reimburse LESSOR for any increases, of any kind, in taxes or fees which are assessed as a direct result of LESSEE’s improvements to the Premises. LESSEE shall have the right to contest all taxes, assessments, charges, and impositions, and LESSOR agrees to join in such contest, if required by law, and to permit LESSEE to proceed with the contest in LESSOR’s name, provided that the expense of the contest is borne by LESSEE.

From Carrier 1 F. Taxes. Landlord shall pay for any assessments against the Premises except that Tenant shall pay to Landlord the Proportionate Share of Tax, providing that the Proportionate Share of Tax is demonstrated to Tenant’s reasonable satisfaction to be based on (i) the actual value of the Communications Facility, and/or (ii) Tenant’s activities at the site. The Proportionate Share of Tax shall be paid within thirty (30) days of Landlord’s written notice, or written notice by the taxing authority to Tenant, of such Proportionate Share of Tax, whichever is later.

Next time, it ought to be “whichever notice is sooner.” The Landlord should not be required to pay the Tenant’s taxes and then wait even longer for payment, just because the town is slow in billing.

From Carrier 3 10. Taxes. Landlord shall pay when due all real property taxes for the Property, including the Premises. In the event that Landlord fails to pay any such real property taxes or other fees and assessments, Tenant shall have the right, but not the obligation, to pay such owed amounts and deduct them from Rent amounts due under this Lease. Notwithstanding the foregoing, Tenant shall pay any personal property tax, real property tax or any other tax (including, but not limited to, a sales or use tax) or fee which is directly attributable to the presence or installation of Tenant’s Antenna Facilities, only for so long as this Lease remains in effect. If Landlord receives notice of any personal property or real property tax assessment against Landlord, which may affect Tenant and is directly attributable to Tenant’s installation, Landlord shall provide timely notice of the assessment to Tenant sufficient to allow Tenant to consent to or challenge such assessment, whether in a Court, administrative proceeding, or other venue, on behalf of Landlord and/or Tenant. Further, Landlord shall provide to Tenant any and all documentation associated with the assessment and shall execute any and all documents reasonably necessary to effectuate the intent of this Section 10. In the event new real property taxes are assessed against Landlord or Tenant for the Premises or the Property (the parties acknowledge that there are present real property taxes), Tenant shall have the right, but not the obligation, to terminate this Lease without further liability after thirty (30) days’ written notice to Landlord, provided Tenant pays any real property taxes assessed as provided herein.

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19.33 Permits; Costs From public radio FM lease With LESSOR’s prior review and written approval of all applications, LESSEE shall, at its own expense, be solely responsible for obtaining and maintaining all local, state, and federal permits and licenses required for its operations under this AGREEMENT. LESSEE shall pay a fee to cover LESSOR’s legal and administrative expenses for such review in the amount of $250 per application, if application is necessary.

19.34 Emergency Power If the Lessee installs a 25- or 50-KW generator, and it is no skin off his nose, wouldn’t it be a nice thought to let the Lessor have 5 KW (so long as the wiring is at Lessor’s expense) to keep the alarm system at the farmhouse running in an emergency? The author hasn’t seen such a clause, and doesn’t know if it might be accepted, but there is no harm in asking.

19.35 Right of First Refusal Even the quickest right of first refusal inserts delays of 15 to 45 days. This is a lease. If the Lessee wants a right of first refusal, let him pay for it separately. Ask to have it removed. The Lessee should agree to that. If it is a deal breaker, here’s a compromise: If the Lessee is concerned about a sale within the first few years, then let it expire in three to five years or so.

19.36 Description of Equipment The actual description of the equipment to be installed is normally included in an exhibit, and not the text of the lease.

Exhibit A. Description of Equipment and “As Built” The type, number, mounting positions, and locations of antennas and transmission lines are illustrative only. The actual types, numbers, mounting positions, and locations may vary from what is shown above. Tenant is authorized to install and maintain the above equipment, for which an “as built” drawing will be provided within 90 days of the completion of Tenant’s construction, which “as built” drawing will thereafter be replaced and kept current as necessary, should Tenant’s equipment on the Tower change. Cost for such work shall be borne by the Tenant. No change or modification of equipment on the tower, as shown on the “as built” drawings, may be made without written consent of Landlord, such consent not to be unreasonably withheld or delayed beyond thirty (30) days of receipt by Landlord of notice of such proposed change or modification.

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19.37 Wireless Tower Space Lease Tips Now, considering things broadly and explaining why there is so much fussing above, as the Landlord it is important to watch out for the following in leases provided by the carriers. A tip of the hat to site acquisition specialist Brian Allen, of Worcester, MA, for these hard-hitting concepts.

19.37.1 Height Creep Make sure that the lease specifies how many antennas, what size and model number, and at what height the center-line of the antennas will be. Sometimes the carrier will try to hang an antenna with the bottom of the antenna at the height requested, picking up a few feet and making your life difficult.

19.37.2 Changes Make sure that the lease requires the Tenant to get written consent for any alterations to the installation. It is often good to have “as built” drawings included subsequently in the lease, then, any time the tenant changes anything, the Landlord’s permission will be required. This way if you think they have done something without permission, you can get someone to climb up and take digital photos, and then you can hit them up for a default of the lease. This concept can also prove useful if they try to get a permit for something, or fail to get a permit for something, and get you in trouble with the town.

19.37.3 Coax Make sure to limit the number and size of the coax cables. Many times the lease will state “and any necessary wires or attachments.” This gives the carrier the ability to share antennas on multiple systems (e.g., use 6 antennas and 12 lines and use “X-pols” or dual-pole antennas, which are simply two antennas in the same shell). Sometimes a carrier will add little boxes next to the antennas that are the size of a loaf of bread to accomplish the same goal. As Landlord, you want to avoid letting them do this. Typically, carriers want to lease for 1-5/8⬘ cables, as these are good for runs of up to 250⬘ from antenna to the ground equipment. For shorter runs, under 175⬘ or so, they can get away with 7/8⬙.

19.37.4 Start Date for Payments Make sure that you have a date certain for the start of payments. At least one national carrier in particular likes to get leases, then not do the construction for a while. You can think of it as a desire to “bank” sites. It is normal to have someone pay $1,000 per year, or, if you have real negotiating power, a small monthly ($200–500/month?) payment until the commencement or completion of construction, then the rent would go to market rent (the ultimate rent shown in the lease).

19.37.5 Shelter Size For ground space, a normal prefab shelter is in the neighborhood of 12⬘ W ⫻ 24⬘ L ⫻ 10⬘ H. If space is tight, anything bigger should pay more rent. One national carrier uses outdoor equipment (no equipment shed required) and tries to get a small space for short money. However, in most instances,

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space on the ground is not very relevant. What you are really renting is space in the air! Just rent them 12⬘ ⫻ 24⬘ and charge them the same as everyone else.

19.37.6 Deals When building a new tower, in the old days the carriers would build the tower, sell it to you for $1, and then rent space from you. You don’t see that anymore. Another deal might be for the carrier to own the tower for a certain period of time and lease the land from you. After say 20 years (when the tower is old and needs repair), the carrier might want to give you the tower and any buildings they built, and then you would lease space to them. Another option is for the carrier to build the tower for their needs and then give you the tower in exchange for a rent reduction over a period of time (e.g., the tower costs $100k to build, market rent is $2000/month, the carrier pays the $100k up front, and they only pay $1000/month for the first 100 months). If they decide not to fulfill the lease, you keep the tower. This encourages them to stay there.

19.37.7 Termination Typically, the lease will allow the carrier to leave with 3 months’ notice and 3 months’ rent as damages. Sometimes they will accept a deal that requires the carrier to pay the remainder of a 5-year term to leave, but this is rare today. The carriers usually want 20 years’ worth of term set up as four 5-year terms.

19.37.8 Additional Loads Make sure it states that the carriers are required to make any structural upgrades to the tower that are necessary as a result of their additional loads. Reinforcing a tower to accommodate additional load can be very expensive.

19.37.9 Removal Bond Some people would say that if the carrier builds a tower they own on your land, make sure you get a removal bond. You never know who is going into bankruptcy!

19.37.10 Default or Bankruptcy You’d like to make sure that you are able to remove and store their equipment if they default or go into bankruptcy. That way you can lease the space they occupied. Just be aware that, in the event of bankruptcy, virtually all bets are off, and the bankruptcy court is authorized to change the terms of the lease.

19.38 Conclusion Leases can be very detailed. Just because a lease is offered to you in 9-point type on two pages is no reason to sign it “as is.” And, just because the site acquisition specialist tells you that this is the “standard form lease,” that’s no reason not to take it to your lawyer.

C HA P TER 2 0

Drafting or Redrafting a Bylaw, or State Statute Before we get going, please understand that the words ordinance and bylaw (sometimes spelled by-law) are interchangeable. In addition, in case you missed it in your seventh-grade civics class, when there is a conflict between the U.S. Constitution and a federal statute, the Constitution wins. When there is a conflict between a federal statute and a federal regulation, the federal statute wins. When there is a conflict between a federal statute and a state law (or statute), the federal statute wins. When there is a conflict between a state law and a city or town bylaw, state law wins. But, the most common problem you will run into is when a bylaw conflicts with a federal statute or regulation. If you are an engineer, you might prefer Table 20.1, which lists authority and type of regulation in descending order of power. Table 20.1: Regulations in Descending Order of Power Authority The Congress, signed by the President Federal Agency (e.g., FCC, FAA) State legislature City or town Board

Name Federal statute Federal regulation State statute or law Ordinance, bylaw Regulation

The Personal Communications Industry Association (PCIA) has created a suggested ordinance to accommodate the needs of cellular carriers and other commercial mobile radio services. As a sign of its importance, the PCIA Model Siting Ordinance is available as a click-through from the home page of their website (http://www.pcia.com/). There you will also find what they call “PCIA Model Siting Legislation.” In 2008, the South Dakota Public Utilities Commission recommended the PCIA Model Zoning Ordinance to cities and counties statewide, recognizing it as an example of balanced local regulation that squares the need for wireless infrastructure with local control of facilities placement and siting (Saperstein, M., Model zoning ordinance, Above Ground Level, November, 2008, p. 10). “Homegrown versions” vary widely, and some are more artfully drafted than others. It is not unusual to see a homegrown ordinance modified after a situation arises that was not contemplated by the drafters of the original ordinance. For example, when the relevant ordinance in Wolfeboro, NH, was originally drafted, it really did not contemplate the possibility that there were existing towers in town, nor did it contemplate the need to replace an existing tower to accommodate co-location (something most towns wish to encourage, and they did, too). As a result, an applicant with an existing 172-foot tower 399

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in Wolfeboro was forced to ask for 22 waivers to replace it with a tower capable of holding multiple carriers. (He was successful, but it was painful.) To help you out, this chapter includes several bylaw phrases with suggestions on how an ordinance could be changed for the better. Please remember that if your town is considering amending the present bylaw it is always better to participate in the process than not. Participation means being there night after night as the ordinance is drafted. Do not rely on the Town Planner to represent your views. As the bylaw is changed “on the fly,” the Planner may not understand your needs. Get the ordinance right, and the application process later will be greatly simplified. The PCIA invites contact with its Government Affairs Team at 703-739-0300, if you are aware of a jurisdiction considering a revision or adoption of a wireless facilities siting ordinance. Once again, there is some duplication of material that has been presented in earlier chapters of this book. Believe me, the motive is not to increase the number of trees killed to print this book, but it seems like a good idea to keep arguments together here so that they make sense in context. As you proceed, remember that everyone wants the benefits of communications, but frequently many people don’t want to see the visible requirements of communications—antennas and their support structures.

20.1 The Elements of a Bylaw Obviously, it is impossible to review the thousands and thousands of bylaws from around the nation. But, by describing the common elements and reviewing a few, this chapter might offer you some help.

20.1.1 Does It Meet Federal Law Requirements? Thanks to SBE General Counsel Chris Imlay for contributing much of the thinking in this section. 20.1.1.1 For Video Services Does the proposal meet the Telecommunications Act (TCA) requirement of accommodation for video delivery service facilities? What is the exemption for satellite antennas? (The FCC preemption definition is broad.) Is there an exemption for television broadcast reception and multichannel multipoint distribution service (MMDS) antennas (as the FCC regulations require)? If you are looking to at least get this kicked back to the drawing board, where you might have an opportunity for more input, tell them that the ordinance is void as preempted by the FCC’s Order of August 1996, implementing the TCA requirements for video delivery services. See Chapter 6 of this book and look for the discussion of the Over-the Air Reception Devices (OTARD) rule, 47 CFR §1.4000 (http://www. fcc.gov/mb/facts/otard.html). 20.1.1.2 For Radiofrequency Interference (RFI) Zoning bylaws (or any other local bylaws, such as nuisance bylaws) may not attempt to control radiofrequency interference (RFI). This subject area is completely preempted by federal statute, confirmed by several U.S. Circuit Courts of Appeals and FCC decisions. The statute reads:

Drafting or Redrafting a Bylaw, or State Statute 401 47 USC §302a. Devices which interfere with radio reception SUBCHAPTER III—SPECIAL PROVISIONS RELATING TO RADIO … (f)(2) A station that is licensed by the Commission pursuant to section 301 of this title in any radio service for the operation at issue shall not be subject to action by a State or local government under this subsection. For an excellent discussion, and a wealth of cases, see Southwestern Bell Wireless, Inc. v. Johnson County Board of County Commissioners, 199 F. 3d 1185 (10th Cir. 1999), cert. denied, 530 U.S. 1204 (2000) (http://www.ca10.uscourts.gov/opinions/98/98-3264.pdf). This was a Kansas case that held that allowing local zoning authorities to condition construction and use permits on any requirement to eliminate or remedy interference “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” The decision went on to say: “Congress intended federal regulation of [radiofrequency interference] issues to be so pervasive as to occupy the field.” A Vermont case offers another well-written and thorough discussion and states plainly: “We conclude that allowing local zoning authorities to condition construction and use permits on any requirement to eliminate or remedy RF interference ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” Freeman v. Burlington Broadcasters, Inc., 204 F. 3d 311 (2d Cir. 2000) cert. denied, 531 U.S. 917 (2000) (http://www.fcc.gov/ogc/documents/opinions/2000/97-9141.doc). For an FCC version of this type of holding, see In the Matter of Petition of Cingular Wireless L.L.C. for a Declaratory Ruling that Provisions of the Anne Arundel County Zoning Ordinance are Preempted as Impermissible Regulation of Radio Frequency Interference Reserved Exclusively to the Federal Communications Commission, DA 03-2196 (released July 7, 2003) (http://hraunfoss.fcc.gov/edocs_ public/attachmatch/DA-03-2196A1.doc or *.pdf).

20.1.2 Does It Meet State Law Requirements? 20.1.2.1 Fees or Costs In evaluating an existing or proposed zoning bylaw, consider also whether or not it may fail to meet the requirements of any state statute that limits the cost of a Special Permit. Allan L. Yackey, Esq., WB9PKM, of the Indiana Bar (Indianapolis), notes, for example, that an Indiana statute prohibits towns and cities from using licenses to generate income. See I.C. 36-1-3-8, which is entitled POWERS SPECIFICALLY WITHHELD and reads: Sec 8 (a) *** a unit does not have the following: *** (5) The power to impose a license fee greater than that reasonably related to the administrative cost of exercising a regulatory power. (6) The power to impose a service charge or user fee greater than that reasonably related to reasonable and just rates and charges for services.

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This has been rather effective in restraining costs of permits and licenses in Indiana, where they are rather conservative when it comes to government power. You may benefit from a similar statute in your state. Even if you don’t have a similar statute, here are some additional ideas on how to deal with high fees or costs. Listed below are comments on the following question:

My city will be raising the fee for a Permit for an antenna-support structure from $(a small dollar amount) to $(a really big dollar amount). This is part of the city’s “fee for service” or “cost recovery system” program. Tower permits are grouped in with licensed day care, satellite dishes over 18 inches, and homes rented to 4 or more adults, all within a particular Special Use Permit Category. What do I do now?

Here are some answers, offering strategies for negotiating in good faith.

1. A Different Category. Ask to be moved to a different Special Use Permit category. Why? Because the level of evaluation for a standard antenna-support structure is more like evaluating yet another telephone pole than it is like evaluating a proposal to install a major shopping center. 2. Waiver for Standard Installations. Leave the price alone, but ask for a very modest fee or even a waiver “upon submission by the applicant of manufacturer’s specifications for installation and a showing that the Applicant can erect to those specifications.” 3. Standard Installations, Standard Cost. As this is a “cost-recovery” measure, argue that antenna installations have great commonalities, and that the staff is experienced in reviewing them. If it is a standard monopole or a communications tower with a survey and PE stamp, the review should take all of five minutes. The new proposed charge is unrelated to the cost. This would be especially true when merely adding an additional carrier to an existing pole or an STL dish to a tower. No review fee should be a percentage of the construction costs, as it ought to be hard to argue that review charges double when height goes from 300 to 600 feet. While cost recovery may be justifiable, profit making is not. This idea was adopted by Brevard County, FL, where standard manufacturers’ specifications are on file. Use one of those structures and the review is perfunctory. 4. Waiver Below 150 Feet. If they don’t buy exemption by removal to another category or waiver within the same category, ask to insert a definition of which antenna-support structures require such studies, which defines them as: “antenna-support structures exceeding 150 feet in height.” (You might compromise at 125 feet.) 5. Waiver for Large Lots. Finally, if you are in a rural area, where five-acre lots are common, try to exempt antenna systems when they will be constructed on large lots, defined as at least five acres (or even ten acres; in some states like Nevada, regulations change when a lot is larger than ten acres). An example of an exemption based on lot size is found in the exemption from certain land-use regulations for farms, where the farm exceeds five acres in size. Massachusetts General Laws, Chapter 61A, Section 3 (http://www.mass.gov/legis/laws/mgl/61a-3.htm). 6. Change the Effective Date. Try arguing that, while the goal may be laudable, as proposed it is presently illegal. Take for example the situation in which a cellular antenna system may only be installed at the dump (but that site will not allow coverage without significant gaps): “This

Drafting or Redrafting a Bylaw, or State Statute 403 section shall become effective at such time as Federal law shall no longer require that local zoning may not result in significant gaps on coverage.” As another example, “This section shall become effective at such time as Federal law shall no longer require that AM broadcast antennas be of a certain minimum height. See 47 CFR §73.189.” Here’s another approach: “This section shall become effective at such time as Federal law shall no longer contain the preemption relevant to the application, such as 47 CFR §97.15(b) (Amateur Radio), 47 CFR §1.4000 (Satellite and TV Broadcast), 47 CFR §73.189 (AM Broadcast), or 47 USC §332 (Commercial Mobile Radio Services).” Still here? Change categories, waive the fee, make the standard fee low, define it away, make large lots exempt, or change the effective date.

20.2 Specific Issues We now proceed to consider some very specific issues in drafting.

20.2.1 Setback or Fall Zone Are the setback limitations arbitrary and self-defeating? As an example, despite a concern for safety, no one can justify an extra six inches of setback for one foot of height limitation (a ratio of 1.5:1). Towers don’t jump if they fall. If someone insists on inserting a 1:1 setback ratio, you might choose to agree to it (but see below for exceptions), provided that the counting begins at a reasonable height in feet (such as 36 feet or 100 feet), the roofline, or the first (second? uppermost?) guy point. Remember the negotiating concept that you can always accept the other side’s price, if you get to set the definitions, terms, and conditions. A restriction of one foot for each foot of height above a house or building bracket, or a set of guy wires or 36 feet, comes closer to being reasonable, though it may still lead to results even planners will concede are bad. See below for the discussion of narrow lots backing up to a forest. To give you an example, if the restriction was 1:1 above 36 feet, Table 20.2 shows what that would mean. Ask out loud why such impediments should apply to antenna-support structures when they do not apply to flag poles, churches, or apartment buildings, and such a setback was never required of the town’s

Table 20.2: 1:1 Setback Above 36 Feet Distance from Structure to Lot Line (Feet)

Maximum Tower Height (Feet)

20 30 40 50 60 70 80

56 66 76 86 96 106 116

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police/fire tower in the center of town only 20 feet from the sidewalk? When proponents of a restrictive ordinance seek to hobble your opportunities, stand up and shout these words: “effective prohibition.” After all, that is not just a suggestion; it is a requirement of the federal statute or regulation. If you’d like to make someone uncomfortable in a public forum, ask this question: “Why would you wish to force an antenna system into the most visible portion of a parcel?” Suggest alternatives that are better for you than those already “on the table.” For example, if the proposed ordinance has a 1:1 setback: 1.

Make the point that the best place to “hide” an antenna system may well be in the back corner, out “in the woods.”

2.

If a concern is to avoid tall structures, note that if the applicant’s land slopes, such a setback bylaw forces operators to build taller antenna structures. A location on the uphill side of the lot could be shorter! See Figure 20.1 for an example.

3.

Make the point that these structures don’t fall the length of their height, and propose that the setback begin at 50 feet or more (see discussion elsewhere in this chapter).

4.

Redefine the setback for this purpose, so it is not to the property line but to the nearest existing inhabited building. Be sure to try for all three tests: “existing,” “inhabited,” and “building.” The building should be an existing building, so a spiteful neighbor cannot erect a new tool shed or garage, and thereby require the removal of the antenna system. It should be inhabited, to prevent

How a Tree or Slope Screens a Tall Structure 150⬘ Screening by 25⬘ tree

Arctan p ⴝ h/d h ⫽ height of structure d ⫽ distance to structure h/d ⫽ 90⬘/150⬘ ⫽ 0.6 θ ⫽ 30°

θ ⫽ 30⬘ 90⬘ Structure 85⬘ Tree 90⬘ Structure (completely screened (mostly screened by three trees) by two trees)

50⬘ Tree

25⬘ Tree

30⬘ Telephone pole

d ⫽ 150⬘

180⬘ Structure (completely screened by three trees plus 90⬘ slope)

150⬘ Structure (partially screened by one tree)

Figure 20.1 Note how, if an applicant is forced to build a structure at the base of the slope, it may actually end up being a taller structure—but still be hidden by trees because of the slope.

Drafting or Redrafting a Bylaw, or State Statute 405 an existing tool shed or garage from holding up an otherwise worthy project just to theoretically protect a power lawnmower. (Insurance will protect the lawnmower.) And, it should be a building, as opposed to a structure, so a fence, basketball hoop, or cold frame cannot bar erection of an antenna-support structure. “Guywire setback” problem

20⬘ rear setback

Guy wires Trees

Guyed tower

Whether guyed or self-supporting, this location behind a line of trees is the least visible site.

Trees

“Building envelope”

If 100⬘ setback required for tower

Most visible site

Driveway

Building

50⬘ side 50⬘ side Street setback setback or required or required yard yard Diagram shows that increasing setbacks forces antenna into most visible site on a parcel. Flexibility is a better public policy.

Figure 20.2 As this illustration shows, the best place to “hide” an antenna system may be in the back corner, out in the woods, rather than within the ratio-based or minimum footage boundaries specified in a local bylaw.

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Good public policy requires that the ordinance must include an escape valve (without the requirement of a Variance) where a different placement would be in the best interest of the neighbors. Take the example of a string of half-acre lots along the street, where each lot is 100 ⫻ 200 feet. (But the example would be better if each lot were 50 ⫻ 400 feet.) Assume all lots back up to the town dump, a state highway, or a forest. Most people would argue that the spot to erect the structure where it would have the least aesthetic impact would be “way out back.” Yet, a ratio-based ordinance would force the structure into a more visible place, closer to the neighbors (see Figure 20.2). Conclusion: If the planners insist on a ratio, you should insist on an escape valve and add words such as: “…except where, for good reason shown, the Board decides that it is in the best interests of the neighborhood to permit construction closer to a lot line than would otherwise be permitted.” Avoid “Variance” language, as the test to grant a Variance is likely a higher hurdle than “for good reason shown.” In addition, you might seek to have the ordinance allow an easement, lease, or written permission from a neighbor to be applied to a setback requirement. 20.2.1.1 A Fall Zone Easement If you fail to convince the authorities that a “fall zone” is of limited or no value, consider another approach. If you own the adjacent lot or have friendly neighbors who live on the adjacent affected lot (your son or daughter?), the best approach might be a fall zone easement (see Figure 20.3). Fall zone easement

N Unaffected parcel

No scale

32

⬘

Buildin

20⬘

gA

Impact Area R ⫽ 52⬘ Tower

Fall zone easement indicated by dotted line on land owned by owner B

cul-de-sac

Unaffected parcel

73 l #3

5

102

21.

Easement ce

g ildin

Par

B

Bu

ne

ty li

per

Pro

“Impact area” could be a “fall zone” (Note: A comparable easement might provide for the area necessary for guy wires)

Figure 20.3 If you own the adjacent lot or have friendly neighbors who live on the adjacent affected lot, the best approach might be a fall zone easement.

Drafting or Redrafting a Bylaw, or State Statute 407 Ultimately facing a requirement for a fall zone, Dale Avery, WU7X, a clever man who is not a lawyer, created a set of easement documents for himself that were accepted by Spokane County, WA. He had to create a map for the easement document, but the county did not require that it be to scale, although it did have to display a required North arrow and name the streets. The documents may be found on the accompanying CD as filename Easement.doc. Return Address: Dale W. Avery 1109 E. Glencrest Dr. Spokane, WA 99208 Private Tower Impact Area Easement THIS AGREEMENT made and entered into this _____ day of _____________, 2006, by the undersigned property owners, who are granting the easement across their property, being tax parcel number 37321.1026. WHEREAS this easement was created to cover a private tower impact area on the following described property: One parcel---- SW ¼ of NW ¼ of NE ¼ of NE ¼ Located within Section 32 Township 27 Range 43 EWM, Spokane County, Washington. Tower impact access to the above described tract of land is provided by an easement being 40 feet wide and described as follows: An elliptical area, with a maximum depth of 40 feet located along the southern edge of parcel 37321.1026 where it shares a common property border with parcel 37321.1025 to the south, Located within Section 32 Township 27 Range 43 EWM, Spokane County, Washington, as shown on attached MAP. MAINTENANCE of the property covered by this easement shall be by the property owners, as described above. Spokane County has no responsibility to maintain or otherwise service the private easement herein described. Only the Division of Building and Planning or its successor agency can remove this easement. I am co-owner of record of the property involved with granting this easement. Co-owner of Record: ________________________________________________________________ Signed:_______________________________________________ Date: _______________________ STATE OF WASHINGTON ) ) SS County of Spokane ) I certify that I know or have satisfactory evidence that ______________________________ and ______ _________________________ are the persons who appeared before me, and said persons acknowledge

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____________________________________________ Notary Signature

My appointment expires: ___________________

_______________________________________ Title

20.2.1.2 Setback for Guy Wires Watch out for the setback rule. Typically, this rule says that no structure may be erected closer to a lot line than 10 to 50 feet, depending on the neighborhood or lot size. Normally there is an absolute minimum. However, local public policy may already recognize some exceptions. Examples of exceptions include basketball backboards and nets, fences, post boxes, stonewalls, and a shed for children to keep them dry while waiting for the school bus. Sometimes the setback rule includes an exception by height (for example, nothing greater than 10 feet in height within the setback area). Sometimes the setback rule includes an exception by use (such as some of the uses listed above). Sometimes the setback rule is set out as an exception for construction that is expressed (in Latin) as de minimis. Here are a few approaches that can work in the face of such a setback rule. If you are dealing specifically with a guyed antenna-support structure, you could suggest this language: “No anchor for guy wires may be located closer to a boundary line than three (3) feet.” If there is an exception for construction under 10 feet in height, you might try: “For the purposes of the exception for structures less than ten (10) feet in height, the height of sloping guy wires entering the setback area shall be the average height of the wires in the setback area.” If you’re feeling lucky, suggest: “Antenna system guy wires shall be considered de minimis construction to which the setback shall not apply.” The public policy reason that supports this approach is that, if it is not applied, the erector will be forced to install a tall pole or a steel I-beam to intercept the sloping guy wires or to “shorten” the guy wires, perhaps mounted into a really big block of concrete. The pole or I-beam with its concrete foundation will be far less aesthetically pleasing than allowing the antenna or guy wires to come all the way to the ground anchor. Furthermore, you can hide guy wires more easily than a big concrete block and I-beam—with shrubbery planted to block the view of the wires gathering at the anchor’s equalizer plate. For the purposes of the bylaw, horizontal elements of an antenna should be permitted (when space is tight, the long Yagi antennas for a cable TV system could be a problem): “The horizontal elements of an antenna may encroach upon the setback area, as if a plane were drawn vertically on the lot line, but in no event may such an element intrude into the air space of an abutting lot without permission of the abutting lot owner.” The public policy argument here is that no one ever requires that a flag may not encroach on the setback, and therefore a Yagi antenna turning radius should similarly be irrelevant.

Drafting or Redrafting a Bylaw, or State Statute 409

20.3 Definitions A wise lawyer once told me that he would allow a client to agree to anything, as long as he got to draft the definitions and starting dates. So spend a great deal of time working on the definitions section. Ask yourself if the bylaw you are looking at has a silly definition, perhaps one that would theoretically require a permit for a crystal radio set with a wire out the window or that would prohibit a shortwave listener’s all-band dipole antenna. In one Massachusetts town, if you read the definition closely and have a dipole in a tree higher than 50 feet, you’d have to chop off any portion of the tree above 50 feet—because the support of any antenna whatsoever cannot exceed 50 feet. Elsewhere, a municipality forbade any transmitting antenna within so many feet of a school— forgetting that cell phones, police radios, security systems, wireless Internet, and so forth all require transmitting antennas. Practice Tip: Think about a blanket exemption for accessory antenna-support structures less than 75 to 150 feet in height. In other words, leave the ordinance alone but exempt short towers in the definitions section, not the height section. Then add: “For the purposes of this ordinance, an antenna or mast extending less than 12 feet above any support structure shall not require a permit of any kind.” Think this is impossible? Go read the Virginia statute at http://leg1.state.va.us/cgi-bin/legp504 .exe?000 ⫹ cod ⫹ 15.2-2293.1. Another possible exemption to a height limit (or a requirement for a Special Use Permit) could be: “If a supporting structure adjoins and is securely attached to a building (not including a chimney) or is integral to the building, the additional height above such point of secure attachment shall not exceed one foot for each one foot in horizontal distance from the point of secure attachment to the nearest property line.” Under such a definition, if you have a 36-foot house and 40 feet to the side lot line, you get a 76-foot structure without a Special Permit, but you knew this from the earlier discussion about ratios. The reason to review the subject is that this time it is approached from the definitions section and not in the height section.

20.4 Height-to-Lot-Line Ratios These are dangerous for the applicant and unwise for the town. They are usually expressed as a maximum of one foot of height for each foot of distance to the nearest lot line (a 1:1 ratio), or the like. Imagine a lot 100 feet wide with a tower. The maximum height tower would be less than 50 feet (due to the width of the tower) and you would be forced to build at the mid-line of the property. The real purpose behind such ratios is to control height, since the building code controls safety. However, if the town’s purpose is to minimize aesthetic impact, the town would really want the tower put along a tree line, or in that portion of the lot where it would have the least impact—not in the most visible place, out in the open in the middle of the grassy area. Often cast as a concern for safety, a setback based on a ratio assumes that the building code is inadequate as a method for protecting the public. Yet, no one has ever suggested that the Empire State Building should have a 1:1 setback to the property line—because, unlike the situation involving towers, for some reason the powers that be are willing to accept the seal of a professional engineer (PE) if the construction is a building, but not willing to accept the stamp of the very same PE if the construction is a tower.

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The other reason sometimes put forth to justify a “ratio-based” setback is a concern for radiofrequency safety or exposure to electromagnetic waves. The odd thing about such a rationale is that if the Planning Board is really concerned about the Maximum Permissible Exposure, then exposure is not measured in feet (a measure of distance)—it is measured in units of energy present at the property line (usually expressed in microwatts per square centimeter).

20.5 Back Lot Only An ordinance provision against placement in a side lot or front lot also reduces flexibility and could prevent someone from placing an antenna in the least visible spot. Examples include a long driveway from the street, perhaps through an unbuildable area (wetland?) sometimes called a flag lot because the lot resembles a flag pole with flag, with a building that is actually closer to the backdoor neighbors than the street. In this case, the neighbors might prefer a “front” yard placement. Similarly, a side lot may also have the least aesthetic impact. It depends on the characteristics of the lot. The bylaw should not take that flexibility away by assuming that all lots are tidy squares. Suggested language if you are backed into a corner: “Except where visibility to neighbors would be lessened by placement in a front or sidelot location, ….”

20.6 Structure Type The type of antenna-support you use is really not the business of the town—just as it ought not dictate that all houses must be colonials or ranches. In any event, be sure to preserve the possibility of using a utility pole, as well as a guyed lattice or unguyed monopoles, as types of antenna-supports. You don’t know today what will be considered most tasteful many years from now.

20.7 Grandfathering Make sure that the new bylaw doesn’t make some existing towers illegal! If that happens, it will discourage co-location on an existing structure, yet most jurisdictions consider co-location to be a very desirable goal.

20.8 Cost You don’t want the process to be costly, to the applicant or to the town. Keep asking this question: “Sure, it would be nice to have all that additional information—such as a survey with contour lines drawn every three feet of elevation—but is it necessary?” Everything that adds cost and delay is: 1.

Bad government, since it tacitly encourages some people to flout the law

2.

A burden on the volunteers who serve on Boards

Suggested language: “In no event shall submission and documentation requirements result in costs that exceed a reasonable proportion of the proposed construction cost.” If you have the votes, make it 10% or $2,000, whichever is greater.

Drafting or Redrafting a Bylaw, or State Statute 411

20.9 Wind-Speed Requirement It is possible for a town to think that increasing the wind-speed requirement may discourage antennasupport structures. That’s what happened in one town on Cape Cod in Massachusetts. A proposed bylaw would have increased the size and cost of a tower—resulting in something they really didn’t want. Here’s how a response (edited for this book) to just such a suggestion was fashioned, along with some other proposed changes to the town bylaw. This letter was created after the first draft and before the required hearing on the proposed bylaw change. If your town is thinking of changing a bylaw, a respectful letter that says what is wrong—and why it is wrong—and that suggests substitute language can go a long way. January 10, 2002 Unfriendly Planning Board Attn: Mr. Mao Tse Tung, Chairman Town of Unfriendly Town Office Building Main Street Unfriendly, MA 01111 By fax 508/555-1111 Dear Chairman Mao: I write to comment on the proposed Town of Unfriendly zoning bylaw amendment, Section 111-11.1 Wireless Communications Towers. I understand that a public hearing on the matter is scheduled for January 11, 2002. I ask that you read these remarks at the hearing, as I shall be unable to attend. I represent [name of client], a federally licensed [description of client and service], with respect to a proposed wireless communications facility/tower at 6 Unfriendly Street, Unfriendly, MA. The proposed bylaw, as currently drafted, fails to meet several standards of federal and/or state law. I hope that my remarks will aid the Board in its drafting efforts. Conflicts with Federal Law An analysis of federal law bearing on proposals such as 111-11.1 begins with [citation to federal law]: [Quoting the federal law] As drafted, it is hard to find that the proposed ordinance complies with [the cited federal law]. [This section then continued with the reasons why the proposed bylaw was deficient in light of federal requirements.] Conflicts with State Law Two sections of the proposed Unfriendly bylaw deserve detailed discussion. (1) Category-5 Hurricane Design Proposed Section 111-11.1, Section B. Requirements, subsection (2) Safety, requires that antenna-support structures “shall be designed to withstand sustained winds and gusts of a Category-5 hurricane.”

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Chapter 20 Suggestion: This section should be deleted entirely. It is superfluous, because all construction must meet the requirements of federal, state, and local law. It should also be deleted for the additional reasons specified below. In the alternative, it should be shortened to read: Communications facilities shall be installed, maintained, and operated in accordance with applicable federal, state, and local codes, standards, and regulations. (a) As proposed, Section B. (2) does not conform to the State Building Code. I refer you to the Massachusetts State Building Code, 780 CMR §3108.0, “Radio and Television Towers.” 3108.1 General: Subject to the structural provisions of 780 CMR 1611.0 for wind loads and the requirements of 780 CMR 1510.0 governing the fire resistance ratings of buildings for the support of roof structures, all radio and television towers shall be designed and constructed as herein provided. At 780 CMR §1611.0, for tower structures in Barnstable County, the design standard required (the reference wind velocity) at Table 1611.3 is 90 miles per hour for the “fastest-mile” wind velocity (780 CMR §1611.3). Where the exposure (a measure of terrain roughness) includes wooded areas and rolling terrain, and is at least one half mile upwind, the design requirement is actually reduced in accordance with Table 1611.4a. In other words, the wind speed requirement in wooded areas and rolling terrain at least one half mile from the water in Unfriendly is less than 90 mph. There being no rational reason to distinguish Unfriendly winds from similar winds in other Barnstable County towns, the State Building Code is sufficient. By contrast, a Category-5 requirement fails to meet the standard “rational relationship” test. In addition, in the past I have inquired about such things from the Office of the State Climatologist. A Category-5 wind speed has never been recorded in Barnstable County. This calls into question the rational basis for the regulation. See also the discussion below, reflecting the position of the American Society of Civil Engineers. By applying a Category-5 construction standard to antenna-support structures, in a court action the town would face these questions: “Why is a wind speed requirement applied to antenna-support structures that is not applied to other structures, for which a lower wind speed requirement—the State Building Code— applies? What distinguishes a communications tower at any height, from a house, church steeple, and so forth, at the same height?” Incidentally, a Category-5 requirement would also exceed ANSI EIA/TIA 222-F, the standard of the American National Standards Institute, the Electronic Industries Association, and the Telecommunications Industries Association. If the Town includes the Category-5 standard in its bylaw, it would be hard-pressed to argue that the bylaw was passed in good faith. (b) This section involves a subject which zoning may not regulate. I refer you to MGL Chapter 40A, Section 3, Subjects which zoning may not regulate. It reads: “No zoning ordinance or by-law shall regulate or restrict the use of materials, or methods of construction of structures regulated by the state building code.”

Drafting or Redrafting a Bylaw, or State Statute 413 The Category-5 wind survival requirement in the proposed amateur tower bylaw dramatically exceeds the Massachusetts Building Code requirement. By specifying a standard of construction currently regulated by the State Building Code, the Town would exceed its power and violate Chapter 40A, Section 3. (c) This section represents bad engineering. I refer you to the American Society of Civil Engineers, ANSI/ASCE 7-95, Section 6.5.2.1, Special wind regions. … The authority having jurisdiction shall, if necessary, adjust the values given in Fig. 6-1 [the basic wind-speed chart] to account for higher local wind speeds. Such adjustment shall be based on meteorological information and an estimate of the basic wind speed obtained in accordance with the provisions of 6.5.2.2. 6.5.2.2 Estimation of basic winds speeds from regional climactic data. Regional climactic data shall only be used in lieu of the basic wind speeds given in Fig. 6-1 when: (1) Approved extremevalue statistical analysis procedures have been employed in reducing the data; and (2) the length of record, sampling error, averaging time, anemometer height, data quality, and terrain exposure have been taken into account. Even if it were legal to change the State Building Code basic wind speeds uniquely for Unfriendly and legal to single out communications uses (as contrasted with all other uses) for a higher wind speed standard, I am unaware that the data required by ANSI/ASCE 6.5.2.1 and 6.5.2.2 is in front of the Planning Board. I doubt the existence of such data. (d) This Category-5 standard conflicts with the expressed aesthetic concern. A Category-5 design standard is clearly in conflict with an underlying intent of this bylaw; i.e., aesthetic impact. Section B. (6) states: “Communications towers shall be designed to minimize visual impact.” The imposition of a Category-5 standard will maximize visual impact. The resulting mass of a tower designed to meet such a requirement will be a far more imposing structure than a typical antenna-support structure. This would be especially true where an antenna-support structure is proposed for an otherwise residential area. If in doubt, examine the two towers on Unfriendly Hill Road in Unfriendly. The original tower was designed to meet either the State Building Code or the ANSI standard and is far less obvious to the casual passerby than its twin “Category-5” design located to its south. The more massive tower was designed to meet the more stringent requirements now proposed. Stepping aside from the conflicts with Federal and State law, surely this Board does not wish to create a situation where more massive structures will result. (2) Fencing. May I suggest: (4) Access Control. Fencing, an anti-climbing device, or other form of access control determined by the Building Commissioner to be adequate to protect public safety shall be provided. Discussion As presently written, this section requires fencing, and fencing only. While subsection (4) is not in conflict with either Federal or State law, it should be reworded to promote the reduction of visual impact.

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Chapter 20 There are many forms of anti-climbing devices that blend in with the surroundings, and could be more pleasing and less industrial than chain-link fence. Conclusion Thank for you for reviewing these suggestions and comments. If I can answer any questions this letter has raised, or if I can help in any way to review possible revisions that may be made to the text of this proposed bylaw, please do not hesitate to contact me. Sincerely, Fred Hopengarten, Esq.

The result? As a result of this letter, the 125-mile-per-hour wind requirement was dropped entirely and the suggested change to fencing language was adopted.

20.10 Drafting a State Statute First, the obvious. You should consider suggesting the PCIA Model Siting Legislation (http://www. pcia.com).

20.10.1 Do Not Cite an FCC Report and Order If you have anything to say about it, do not cite an FCC Report and Order. It may be modified by subsequent FCC language. It may also be effectively modified by subsequent court decisions. You do not want to freeze state protections to those available at the time of the drafting of the state statute, before subsequent writing and court decisions that proved more favorable. Leave it more general. If forced to cite an FCC Report and Order, add “as it may subsequently be amended or replaced.”

20.10.2 Not Just Zoning Ordinances! Do not limit your protections to zoning ordinances that impact the placement, screening, or height of an antenna system. There are other municipal ordinances with impact that are not zoning ordinances. This category includes such additional ordinances as “general bylaws,” “wetlands,” “scenic road,” “steep slope,” “historic district,” or “conservation” bylaws, and so forth. Be sure that the statute protecting communications facilities applies generally and to more than just zoning ordinances. Try not to get caught on this one. In addition, if you are drafting a state law, there is no logical reason that it should be less extensive than the federal law, which will control anyway. Nonetheless, don’t spend your goodwill fighting for an exemption from historic-district regulation, unless the local authority has attempted to put the entire town and not just the town green, or commons with surrounding houses, into the historic district.

20.10.3 Go for a Minimum? When speaking to colleagues in your business, inquire if it is possible to suggest an easier permitting process for structures under 125 feet.

Drafting or Redrafting a Bylaw, or State Statute 415

20.10.4 Think Real Hard About How to Exceed Any Height Mentioned Do not allow the method to exceed any mentioned height to be by Variance, since a Variance presents substantially different tests when compared to a Site Review or a Special Use Permit, for example. Deciding what will work in your jurisdiction is the province of lawyers. Contact the PCIA or the NAB (if you are a member) and get some drafting help.

20.10.5 Line Up Lobbying Help Get the regional office of the Federal Emergency Management Agency (FEMA), the Department of Homeland Security, the Red Cross, and your state emergency management agency lined up to support your position. It may take some doing to find a person authorized to write a letter or to testify, and it may take additional doing to convince that person to actually do it! If you succeed, however, encourage such people to show up at a hearing in uniform. The uniform speaks volumes and demands respect. A final word: Lobbying does not require Armani suits and Gucci shoes, despite the fact that it is frequently practiced that way. It does, however, require persistence, patience, and politeness. Good luck! 20.10.5.1 Testimony at the Legislative Public Hearing If you are pursuing a new statute to protect communications, sooner or later there will be a public hearing at the state house before the committee charged with the responsibility for this subject area. When this happens you may receive a sheet of rules established by the legislature for public testimony. Here is a list of rules from Connecticut, with comments and advice: Please submit 50 copies of written testimony to Committee staff one hour prior to the start of the hearing in Room 3900 of the LOB [Legislative Office Building].

Comment: I have testified before the Connecticut legislature. They are serious about the 50-copies rule, but paper is cheap. In any event, you’d want to produce enough copies for the committee, committee staff, allies, and the press. Also, written testimony requires that people really think through their complaint, and their proposed solution. It is a good public policy. Sign-up for the hearing will begin at 12:00 PM in Room 2B of the LOB. The first two hours of the hearing is reserved for the public comment and will recess at 3:00 PM. Public speakers will be limited to 3 minutes of testimony. Agency and Department officials and legislator testimony will begin at 3:00 PM. Public comment will resume at 4:00 PM. Unofficial sign-up sheets have no standing with the Committee.

Comment: They are serious about the 3-minute rule. Forget the thanks; a serious “thank you” eats up 15% of your available time. Do not concentrate on language, unless you have something really specific. I recommend testimony that will grab the attention of a newspaper reporter (there are always two or three reporters at every hearing—they have the state house beat). I recommend horror stories and public safety stories (hurricanes, floods, forest fires, ice storms, medical help to missionaries overseas, ships at sea, disasters, etc.). Drafting technicalities are best handled in private conversations with staff.

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What they mean by “unofficial sign-up sheets” is that if you come along with a list of people in proper order, each for 3 minutes, hoping that one person can sign up for everyone, they won’t accept that. Each person wishing to speak must sign up individually, and you should be there at 12 p.m. to sign up, as the late signers don’t get to speak at all. 120 minutes divided by 3 minutes theoretically permits 40 speakers, but things tend to get sloppy. I doubt that 25 people will have time to speak. So get there early to sign up. In summary, submit serious testimony in writing, and speak about human-interest issues in public oral testimony. If reporters approach, take all the time they want (they usually break off after two to five minutes to talk with someone else). Bring business cards so reporters can follow up.

Bibliography Laws and Regulations ANSI standard TIA/EIA-222-F, Structural Standards for Steel Antenna Towers and Antenna Supporting Structures. ANSI/ASCE 7-95, Section 6.5.2.1, Special wind regions. Citrus County FL Code §4673.F.14, Communications Transmission/Reception Interference. Colorado, Common Interest Ownership Act (CIOA). Communications Act of 1934, 47 USC §302a. Communications Act of 1934, 47 USC §332(c)(7). Conn. Gen. Stat. §52-557n(a)(2)(B) (Supp. 1997). FAA Lighting Regulations.14 CFR, Part 77. FCC Opinion and Order. In the Matter of T-Mobile and the Pierce Archery Proposed Antenna Tower (North Ridgeville, OH). (2003). ⬍http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-03-3826A1.doc⬎. FCC Opinion and Order. In the Matter of Petition of Cingular Wireless L.L.C. for a Declaratory Ruling that Provisions of the Anne Arundel County Zoning Ordinance are Preempted as Impermissible Regulation of Radio Frequency Interference Reserved Exclusively to the Federal Communications Commission. (2003). ⬍http:// hraunfoss.fcc.gov/edocs_public/attachmatch/DA-03-2196A1.doc⬎. FCC Public Notice. Use of Valcom Manufacturing Group Self-supporting Whip, Model V-33085AM/CL2 Antenna. (2008). ⬍http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-08-448A1.doc⬎. FCC Report and Order. In the Matter of Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, ET Docket No. 93-62 (1996). FCC Report and Order. In the Matter of Restrictions on [OTARD Rule]. CS Docket No. 96-83 (1996). ⬍http:// www.fcc.gov/Bureaus/Cable/Orders/1996_TXT/fcc96328.txt⬎. FCC 47 CFR §1.4000, Over-the-Air Reception Devices (OTARD) rule. See 47 USC §309(a). FCC 47 CFR §73.189, 190, Minimum height. FCC 47 CFR §73.211, Power and antenna height requirements, as well as 47 CFR §73.315. FCC 47 CFR §73.1692, Radio Broadcast Services, Part 73, Subpart H, FM transmitter location. FCC Order on Reconsideration. In the Matter of Restrictions on [OTARD Rule]. CS Docket No. 96-83 (1998). ⬍http://www.fcc.gov/Bureaus/Cable/Orders/1998/fcc98214.txt⬎. FCC Order on Reconsideration. In the Matter of Restrictions on [OTARD Rule]. CS Docket No. 96-83 (1999). ⬍http://www.fcc.gov/Bureaus/Cable/Orders/1999/fcc99360.doc⬎. Mass. CMR 780 3108.0, Radio and Television Towers. Mass. CMR 780 3109.0, Radio and Television Antennas. Mass. Gen. Laws, Ch. 231, §6F. ⬍http://www.state.ma.us/legis/laws/mgl/231%2D6f.htm⬎. Mass. Gen. Laws, Ch. 258, §10. Mass. State Building Code, 780 CMR §3108.0, Radio and Television Towers. Me. Rev. Stat. Ann. tit. 14 §8104-B(3) (West Supp. 1996). National Electrical Code (NEC): NFPA 70, National Electrical Code. National Environmental Policy Act section 106 47 CFR §1.1308.

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National Register of Historic Places National Historic Preservation Act of 1966, as amended, 16 USC 470. Nevada Code NRS 278.0233, Actions against agency: Conditions and limitations. Nevada Code NRS 278.0237, Actions against agency: Defenses; attorney’s fees, court costs and interest; remedy cumulative. NH RSA 674:19. Applicability of Zoning Ordinance. New York 22 NYCRR §130-1.1. Costs and Sanctions for Frivolous Actions. New York, City Environmental Quality Review Act (CEQRA). New York, State Environmental Quality Review Act (SEQRA). Penn. 35 P.S. §7210.502. “Deemed approved” statute. Establishes 15 business-day rule. Telecommunications Act of 1996 Pub. L. No. 104-104, 110 Stat. 56 (1996). Sometimes called the TCA, it is found in the U.S. Code at 47 USC §332 (c)(7). Virginia §15.2-2293.1. Placement of amateur radio antennas. ⬍http://leg1.state.va.us/cgi-bin/legp504. exe?000⫹cod⫹15.2-2293.1⬎. Wolfeboro, NH. §175-183 B(1)(h) Zoning Bylaw.

Cases Adriance v. Town of Standish, 687 A.2d 238, 240 (Me., 1996). Aircraft Owners and Pilots Association v. Federal Aviation Administration, 600 F. 2d 965 (D.C. Cir. 1979). American Bird Conservancy, Inc.v. FCC, 516 F.3d 1027 (D.C. Cir. 2008). Anderson v. Barker, Middlesex Superior Court Civil Action No. 81-2494 (Massachusetts, 1981). AT&T Wireless Services v. Mayor and City Council of Baltimore, 123 Md. App. 681 (1998). Barrett and Barrett v. Conservation Commission of Falmouth, Mass. App. Ct. (1996). Blackburn v. Doubleday Broadcasting Company, Inc., 353 N.W. 2d 550 (Minn., 1984). Bodony v. Sands Point (NY), 681 F. Supp. 1009 (EDNY 1987). Borowski v. Burbank (IL), 101 FRD 59 (ND IL, 1984). Broyde v. Gotham Tower, 13 F.3d 994 (6th Circuit, 1994). ⬍http://pacer.ca6.uscourts.gov/cgi-bin/getopn. pl?OPINION⫽94a0007p.06⬎. Burlington Broadcasters. Proposed Supplemental Findings of Fact (2004). ⬍http://www.antennazoning.com/docs/ wizn-supplemental-findings.doc⬎. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993). City of Ladue v. Gilleo, 512 U.S. 43 (1994). City of New York v 17 Vista Associates, 84 NY2d 299, 642 NE2d 606, 618 NYS2d 249. City of Rancho Palos Verdes et al. v. Abrams, 544 U.S. 113 (2005). ⬍http://www.law.cornell.edu/supct/html/031601.ZS.html⬎. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). City of Round Rock v. Smith, 687 SW2d 300 (Tex. 1985). Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). CTIA v. FCC, U.S. Court of Appeals (D.C. Cir.), Docket 07-1475, July 8, 2008 ⬍http://pacer.cadc.uscourts.gov/ docs/common/opinions/200807/07-1475-1126058.pdf⬎. E.G. Helm, Jr. v. Louisville Two-Way Radio Corporation. 667 S.W. 2d 691 (Ky., 1984). Ermler v. Brookhaven, 780 F. Supp 120 (USDC EDNY 1992). Evans v. Shore Communications, Inc. et al., 112 Md. App. 284 (1996). First Amendment Cases: City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988), newsracks; Ward v. Rock Against Racism, 419 U.S. 781 (1989), governing the amplification of music; Kovacs v. Cooper, 336 U.S. 77 (1949), restricting the use of sound trucks; Saia v. New York, 334 U.S. 558 (1948) prohibiting the use of loudspeakers. Franks v. DiRico, MA Superior Court, August 26, 1997, 1997 Mass. Super. LEXIS 282. Freeman v. Burlington Broadcasters, Inc., 204 F.3d 311 (2d Cir. 2000), cert. denied, 531 U.S. 917 (2000). ⬍http:// www.fcc.gov/ogc/documents/opinions/2000/97-9141.doc⬎. Gordon v. Bridgeport Housing Auth., 544 A.2d 1185, 1189 (Conn., 1988). Haley v. Town of Lincoln, 611 A.2d 845, 849 (R.I. 1992).

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Index 17 Vista Associates, City of New York v., 298 47 CFR §73.189, 73.190, 107, 232–234 47 CFR §73.3598, 164–165 47 U.S.C. § 302a, 35, 196–198, 271–272, 331, 337–338, 400–401 501(c)(3) tenants, 370

A Abrams, City of Rancho Palos Verdes et al. v., 303 ACC (architectural control committee), 83–84, 86–87 Access, lease, 357–359 Accessory structure, 194 acme.com/mapper, 44, 46 Adobe online PDF converter, 251 Adriance v. Town of Standish, 299 Adult theater, 246 Advertising public hearings, 261–263 Advisory Council on Historic Preservation, 124, 214 Aesthetics aesthetic impact, 181–183 balloon tests, 189 camouflage, 191 crank-up towers as solution, 189–190 Historic Preservation Offices, 185, 187 intervening trees/terrain, 103, 185, 186, 232, 233 KinStar antennas, 190, 234–235 painting to reduce visibility, 190–191

perspective and screened views, 47, 183, 272 photographs as fair representation, 49–50, 187–188 visibility of antenna system, 184–185, 404–405 zoning violations, reasons for, 191–195, 403–405 Agent. See Real estate agent Aircraft Owners and Pilots Association v. Federal Aviation Administration, 144 Airfi, Harvey, 174 Airspace consultant, 144 Airspace safety, 142–144 FAA exemption conditions, 143 FAA permission, 143–144 light shields, 223, 225 painting/lighting requirements, 142–143, 214 airspaceusa.com, 144 Airtime loss, 380 Alabama, 326 Alaska, 80, 104, 113 Alexander, Cris, 235–236 Allard, Wayne, 162 Allen, Brian, 397 Allies, 21 AM antennas First Amendment arguments, 201–202, 245–247, 303–304 height requirements, 232, 234 Koor Communication v. City of Lebanon, 107, 142, 201, 232, 303 lease issues, 373

425

preemption, 236–245 reasons for height, 247 AM license, 247–248 Amateur Radio Tower, An (Wilson), 132–133 Amendments, lease, 382 American Bird Conservancy, 222–223 American Bird Conservancy, Inc. v. FCC, 223 American Radio Relay League (ARRL) Antenna Book, The, 12 American Wind Energy Association, 227 Anchors, guyed towers, 137 Anderson, Katzman v., 89 Anderson v. Barker, 295 ANR Freeze, 90 ANSI TIA/EIA-222-F standard, 94–96, 134–135 ANSI/ASCE 7-95, 413 Antenna owners allies, 21 analysis of proposal by, 19–20 contacting, for information, 19–20 favorable letters from, 20–21 as supporters, 26 Antenna Structure Registration (ASR) Number, 323–324 Antennas additional, 350–351, 352–353, 355 Crossed-Field Antenna, 235–236 E-H antenna, 235–236 KinStar antennas, 190, 234–235 lease issues, 361–363

426

Index

Antennas (continued ) nomenclature, 272, 273 specification sheets, 47 Valcom whip, 236 Antenna-support structure, 45. See also Construction antennazoning.com, 117–118, 234 Anticlimbing devices, 147, 322–323 Appeals, 22 Applicable law building codes, 92–107 CC&Rs, 83–90 federal. See Federal laws local, 90–92. See also Local laws precedence of federal/state/ local, 399 state. See State laws Applicant’s role always wear white hat, 2–3 being nice and flexible, 8 preparation process, 7–8 Application process appeals, 22 being nice and flexible, 8 building permits. See Building permit process buying land, 9–11 canvassing neighborhood, 17–18 costs of, 23 deliberations/decisions, 22, 287–290 documents you may need, 45–47 drafting applications. See Permit applications evaluating antenna sites, 12 fixing TVI/RFI, 15–16 lawsuits. See Lawsuits making offers, 13–15 My Property documents, 44 Nancy Reagan posture, 2 obtaining favorable letters, 19–21 petitions, 18–19 preparation, importance of, 9 preparation process. See Preparations

public hearings. See Public hearings purchase and sale contract, 12–15 retail politics, 17 steamroller effect, 21 timeframe, 22 using attorneys for purchase and sale contracts, 12–13 viewings, 21–22, 279–280 Applications. See Application process; Building permit process; Permit applications Appraisal Journal, The, 272 Appraiser, 202–203 Arbitration, 392 Arizona, 181 Arkansas, 42, 95 ARRL RFI Book, 16 arrl.org, 325 ASR (Antenna Structure Registration) Number, 323–324 Assessments, 204 Assessor’s/neighborhood maps, 44, 46, 204 Assignment, lease, 380–381 Association vs. causality, 176–177 Assurance, 198–199 AT&T Wireless Services v. Mayor and City Council of Baltimore, 246 AT&T Wireless Services, Oliver v., 247 Attorneys fees for hearings, 17, 34–35 hiring tips, 11, 83 Letter of Understanding, 27–29 municipal counsel, 77–78 purchase and sale offer/ contract, 12–13 retainer letter, 29–34 Rules of Professional Conduct, 38 Attractive nuisance, 144–148 Audubon Field Notes, 217 Audubon Magazine, 217 Audubon Society, 228, 274 Avatar Environmental, LLC, 222

Average height, 195 Avery, Dale, 407 Avian mortality research, 220. See also Birds and towers awea.org, 227

B Backup power rule, 207 Balloon tests, 189 Baltimore, AT&T Wireless Services v. Mayor and City Council of, 246 Bankruptcy, 398 Bans, 201, 245–247, 303–304 Barker, Anderson v., 295 Barker, Barbara, 295, 296 Barrett and Barrett v. Conservation Commission of Falmouth, 300 Baumgartner, Fred, 182, 218 BC Law (magazine), 283 Becker, Greg, 325, 336 Big mo, 20 Binding permit applications, 254 Bird Conservancy, American, 222–223 Birds and towers, 216–223 bird deaths caused by human activities (chart), 230 catastrophe anecdote, 216–220 Fairfax letter, 227–229 Fraasch letter, 229–230 lighting recommendations, 226 performing your own study, 226–227 research and litigation, 220–223 towers under 200 feet, 223, 224 Trumpeter Swan case, 216 birds.cornell.edu, 218 Black hat, 3 Blackburn v. Doubleday Broadcasting Company, Inc., 333 Blake, Catherine C., 157 Blank, Martin, 164, 265 Blank page in permit application, 259

Index 427 Blanketing interference, 380 Board of Appeals, 16, 22 Boards decisions. See Decision of the Board deliberations, 22, 287–288 hearings. See Public hearings BOCA code, 92–94 Bodony v. Sands Point (NY), 263 Bond to guarantee removal, 345 Borgomeo, Rev. Pasquale, 152 Borowski case, 13 Bound notebook, 43–44 Brandeis, Louis, 261 Bread statistics, 177 Breakall, James, 234 Bridgeport Housing Auth., Gordon v., 299 Briggs, Jeff, 144, 146 Brinker, David, 96 Broadcast station locations, federal law relating to, 110–111 Brock, Ralph, 198, 334 Brokers, 203 Brookhaven, Ermler v., 304 Broyde v. Gotham Tower, 35, 196, 272, 334 Building codes, 92–107 ANSI TIA/EIA-222-F standard, 94–96, 134–135 BOCA code, 92–94 National Electrical Code, 96 safety issues, 134–135 Building Commissioner, 16 Building envelope, 6 Building Inspector advice for dealing with, 72–74 characteristics of, 71 informal discussions at first visit, 62–65 informal discussions at second visit, 65–66 inspections, 306 overview, 16 PE requirements, 37–38 Building Officers and Code Administrators. See BOCA code Building permit process

antenna site technical standards, 308–312 application, 44, 305 Certificate of Completion, 87, 104, 306, 314–317, 340 construction practices/tips, 312–314 inspections, 306 overview, 16–17 posting permits, 305–306 sample permit, 307 Burlington Broadcasters, Freeman v., 35, 117, 156–159, 196, 272, 334, 401 Bushes, planting for child safety, 147–148 Bushland, Roland, 219 Bylaws back lot only requirement, 410 cost limits, 410 definitions, 51, 409 drafting/redrafting process, 399–400 federal requirements for, 400–401 freezes, 90–92 grandfathering, 350, 410 height-to-lot-line ratio, 403–404, 409–410 new, and additional antennas, 352–353 obtaining/reading, 46, 51–52 overview, 90 RFI, 400–401 setbacks/fall zone requirements, 193–194, 403–408 state requirements for, 401–403 structure type, 410 vested rights, 90–92 video delivery services, 400 wind speed requirement, 411–414

C California, 32, 42, 95 Cameras, 48–51. See also Photographs

supporting pictures for application, 48–49 Camouflage, 191 Captions, lease, 391 CARE (Canyon Area Residents for the Environment), 160 c-a-r-e.org, 160, 164 Carney, Deborah, 156, 160, 164 Carter, Jimmy, 374 Causality, 176–177 CB interference statute, 337–338 CC&Rs (covenants, conditions, and restrictions), 83–90 build fast recommendation, 86–87 contingency offers, 84–86 Covenant Not to Complain or Compete, 79 equity and non-enforcement, 89–90 federal/state laws prohibiting enforcement, 88–89 lease issues, 364 notice of violation received, 87–88 obtaining before agreeing to purchase, 83–84 retain lawyer early, 83 Cell Tower Blight, The (Randolph), 181 Cellular Business, 144 Cellular leases. See Lease issues Cellular telephone, federal law relating to, 111–112 Center-line (C/L), 361, 397 CEQRA (City Environmental Quality Review Act), 40 Certificate of Completion, 87, 104, 306, 314–317, 340 Certificate of insurance, 47, 72, 386 Certificate of Occupancy, 306 Certificate of Use, 71, 87, 306, 315 CFA (crossed-field antenna), 235–236 CFR 47 Vol 1.pdf, 118 Chalmers, James A., 200 Chambers v. Old Stone Hill, 10n Changes to installation and leases, 363, 397

428

Index

Charlotte, VT (Freeman v. Burlington Broadcasters), 35, 117, 156–159, 196, 272, 334, 401 Chicago, Mattson v. City of, 91 Child safety anticlimbing devices, 147, 322–323 attractive nuisance, 144 bushes/guy guards, 147–148 Choice of law, 391 Churchill, Winston, 2 Cincinnati v. Discovery Network, Inc., 246 Cities, suing, 76–77, 298–299 City of Ladue v. Gilleo, 245 Clinton, Bill, 196, 337 Close, 18 Coax cables, 397 Code Enforcement Officers advice for dealing with, 72–74 characteristics of, 71 Colchester, Hillerby v. Town of, 299 Collating applications, 252 Collins, Lew, 373 Collins, Marvin, 67, 138 Colorado, 11, 182, 202, 244 Lake Cedar Group (Denver, CO), 159–165 Commencement, lease, 367 Commercial buyer’s agent, 11 Commercial general liability (CGL) insurance, 47, 384–386 Commercial Mobile Radio Service (CMRS), 303 Commercial real estate agents, 10 Commissioners, characteristics of, 71–74 Committing yourself to win, 1–2 Common Interest Ownership Act (CIOA), 11 Communications Act of 1996, 51, 150, 155, 303, 352, 356 Communications Facility, definition, 366 Company, informal discussions with, 60–62 Comparables and property values, 202 Compass, handheld, 52

Computer Law Review and Technology Journal, 198, 334, 335 Computers, 53–56 drafting software, 56 image/image editing software, 56 PowerPoint presentations, 69–70 showing antennas on photographs, 56 spreadsheet software, 56, 185, 186 word processing software, 55–56, 250 Concrete, 306, 314, 319 Conditional Use Approval (CUA), 16 Conditional Use Permit (CUP), 16 Cone of protection, 178 Conflict of interest, 73–74 Connecticut, 204, 299, 415 Consent, lease, 390 Construction anticlimbing devices, 147, 322–323 holes in ground, 322 Phillystran, 324–325 plans, 47 posting “Danger: High Voltage” signs, 324 posting registration number, 323–324 practices/tips, 312–314, 361–363 for tenant’s utilities, 381–382 tree removal, 321 work fast, 86–87, 319–320 work neatly, 320–321 work safely, 321 work thoughtfully, 321 Construction permit (CP), 164–165 Consumer Electronics Manufacturers Association, 199 Consumer Price Index (CPI), 375–377 Contigent offer, 84–86 Contingencies, lease, 374 Continuances, 277–280 Contractors, 41–42

Contracts, purchase and sale, 12–15 Cooper, James A., 216 Cooper, Kovacs v., 246 Corini, John, 136, 137 Cornell University Laboratory of Ornithology, 220 corrosionchronicle.com, 191 Cost of Living increase, 374 Costs application process, 23, 410 committing yourself to win, 2 legal. See Legal fees permit fees, 401–403 Counterparts, 390 Covenant Not to Complain or Compete, 79 Covenants, conditions, and restrictions. See CC&Rs Cover page, 259–260 CPI (Consumer Price Index), 375–377 CQ Magazine, 182 Crank-up towers, 189–190 Crimes, complaints escalating to, 326–327 Crossed-Field Antenna (CFA), 235–236 CTIA v. FCC, U.S. Court of Appeals, 207 Cure defaults, right to, 386–387 currykerlinger.com, 220

D Damage repair, 348–349 Damascus Residents for Responsible Tower Siting (DRRTS), 237–245 “Danger: High Voltage” signs, 324 Dark Skies Initiative, 223 Date/time stamping, 250, 254, 255–257 Daubert v. Merrell Dow Pharm., Inc., 157 De minimus construction, 195, 408 Dearborn, Loschavio v. City of, 304 Debris pattern and fall zone, 137–139 Decision of the Board if you lost, 289 if you won, 288–289

Index 429 modifying decisions, 289–290 overview, 22 reaction/behavior immediately after public hearing, 287–290 submitting proposed decision/ order, 280–281 Deemed approved, 257 Default, lease, 368, 386–387 Defects of Title, 364 Definitions, bylaws, 51, 409 Deliberations of Board, 22, 287–288. See also Decision of the Board Delivery of lease notices, 387 of permit applications, 253, 254 DeLorme maps, 12, 46, 232, 233 Denver Post, The, 162 Different grounds, 303 Digital cameras, 51 DiRico, Franks v., 91 Disclosure, full, 3–5 Discovery Network, Inc., Cincinnati v., 246 Distances full disclosure of, 4 visibility calculations, 184–185 District of Columbia, 31, 167, 223 Documents. See also Letters .doc/.pdf files. See CD-ROM (included with book) documents you may need, 45–47 My Property documents, 44 for offers, 13–15 for timeline, 55 Doubleday Broadcasting Company, Inc, Blackburn v., 333 Doyle, Peter H., 165, 175 Drafting bylaws basics of, 399–400 elements of bylaws, 400–403 specific issues. See Bylaws Drafting software, 56 DRRTS (Damascus Residents for Responsible Tower Siting), 237–245 Dry seal/dry stamp, 36–38, 47, 64

Due diligence period, 374 Duxbury, MacGibbon v. Board of Appeals of, 291 Dylans, Bob, 219

E earth.google.com, 44, 46 Easements fall zone, 406–408 for utilities, 361 Eau Claire, WI, 216–220 Editor, Letter to, 284–286 E.G. Helm, Jr. v. Louisville TwoWay Radio Corporation, 334 E-H antenna, 235–236 EIA/TIA-222, 47, 94–96, 134–135 Electomagnetic Fields (EMF) and Health Risk: A Scientific Perspective (Blank), 164 Electrical permits, 46, 63, 96, 314 Emergency communications, 248 Emergency power, 206–207, 396 EMF (Electromagnetic force), 36, 45, 164 Empire State Building, 409 EMR Network, 156 EMR Policy Institute, 156–157, 164 Endangered Species Act, 223 Environmental Assessment (EA), 211–215 Environmental issues danger to birds, 216–223 environmental/regulatory consultants, 39 federal law relating to, 118–129 government agencies, 214 lighting, 223–230 NEPA compliance, 211–215 T-Mobile case, 131–132 Equity and CC&R enforcement, 89–90 Ermler v. Brookhaven, 304 Evans, Bill, 220–222 Evans v. Shore Communications, Inc., 246 Excel spreadsheets property value studies, 201

visibility calculations, 185, 186 Execution, lease, 390 Existing structure alterations to, 350 damage repair, 348–349 grandfathering, 350, 410 law of prior existing structures, 314, 315, 340 prior conforming use, 350–351 prior nonconforming use, 351 replacing/reinforcing towers, 350 strengthening, 349–350 town background, 19–20 Expenses. See Costs Experts, team support from, 26 Extension rentals, 371

F FAA (Federal Aviation Administration) Aircraft Owners and Pilots Association v. FAA, 144 exemption conditions, 143 “No Hazard” decision, 144, 146 painting/lighting requirements, 143 permission, 143–144 TOWAIR findings, 145 TOWAIR website, 144 FAA clearance, federal law relating to, 112–114 Facilities clause, 355–356 Fair Radio, 189 Fair representation, 49–50 Fairfax letter, 227–229 Fairfax, Steve, 227 Fall zone, 135–142 easement, 406–408 expert opinions, 139, 142 guyed towers, 137–139 letters from tower manufacturers, 140–141 mechanical fuse, 136–137 possible failure and denials, 139 warning signs, 142

430

Index

Falmouth, Barrett and Barrett v. Conservation Commission of, 300 FCC (Federal Communications Commission) AM license process, 247–248 AM preemption ruling/appeal, 236–245 American Bird Conservancy, Inc. v. FCC, 223 backup power rule, 207 CTIA v. FCC, 207 fence violations, 347–348 Form, 301, 302, 110–111, 373 Interference Handbook, 198, 329, 334 KinStar antennas, 190, 234–235 license, 47 migratory bird docket, 222 Recommendations of the Independent Panel, 207 Red Lion Broadcasting Co. v. FCC, 201, 303 Registration Number, 323–324 Turner Broadcasting System, Inc. v. FCC, 201, 303 Valcom whip, 236 FCC Form 601, 212–213 FCC Form 854, 114, 144, 212–213 FCC OET-65 Supplement B.pdf, 36, 152 FCC OET-65.pdf, 36, 152 Federal Aviation Administration. See FAA Federal Emergency Management Agency (FEMA), 215 Federal land, 126, 127, 173, 214 Federal laws 47 CFR §1.4000, 99–107 broadcast station locations, 110–111 bylaws meeting requirements of, 400–401 environmental protection, 118–129 FAA clearance, 112–114 FM transmitters, 107–109 information sources, 97 mobile services, 111–112

OTARD rule, 79–83, 97–107, 304, 400 precedence of federal/state/ local laws, 399 prohibiting enforcement of CC&R, 88 reference materials, 271 RF exposure, 114–116, 149–152 RFI, 35, 271–272, 331, 338, 400–401 Federal Register, 120, 124, 127, 128, 168, 213, 215 Federal Rules of Civil Procedure (FRCP), 301–302 Fee simple, 388–389 Fees, legal. See Legal fees Fees, permit, 401–403 FEMA (Federal Emergency Management Agency), 215 Fencing, 347–348 Filing permit applications, 250–251 Filters, 199 First Amendment argument basics of, 245–247 for broadcasters, 201–202 in Koor Communications case, 234, 245 Fish and Wildlife Service (FWS), 168, 214, 220–221, 274 Flag lots, 410 Flood zones, 214 Floodplains, 215 Florida, 64, 95, 96, 196, 225, 264, 272 Flying setback, 194 FM transmitters, federal law relating to, 107–109 Folded monopole/unipole kits, 353 FONSI (Finding of No Significant Impact), 118, 131–132, 213 KRKO-AM, 165–176 Force Majeure, 382 Form, 301, 302, 110–111, 373 Forms Building Permit application, 44 purchase and sale agreements, 13–15 Fort Worth Tower, 52 Fraasch letter, 229–230

Fraasch, Steven, 216, 229 Franks v. DiRico, 91 Fred Hopengarten v. Board of Appeals of Lincoln, 342 Freeman, Mary Beth, 156 Freeman v. Burlington Broadcasters, 35, 117, 156–159, 196, 272, 334, 401 Freezes, plan/non-plan, 90–92 Friedman, Barry, 237, 238 Full disclosure policy, 3–5 Fybush, 182

G G-2 (good gossip) on neighbors, 20 Galacci, Caroline, 169 Galvin, Deborah, 98 Garbose, William, 297 Garsh, Susan, 91 Gehring, Joelle, 226 Generators, 206–207 Georgia, 251, 258 Gere, Richard, 298 getawaiver.com, 99 “Ghost in the Computer: Radio Frequency Interference and the Doctrine of Federal Preemption” (Brock), 198, 334, 335 Gilleo, City of Ladue v., 201, 245 Good faith, 300–301, 402 Gordon v. Bridgeport Housing Auth., 299 Gotham Tower, Broyde v., 35, 196, 272, 334 Gourley, Brent H., 326 Government approvals, lease, 374 GPS receiver, 53 Grandfathering, 350, 410 Gray, Haze, 49, 190–191 Greenmail, 353–354 Gregg, Donna C., 239 Griffin, Lovell v., 202, 245 grinnellgroup.com, 159 Guirey, Bernie, 221 Guy guards, 147–148 Guy wires bushes/guy guards, 147–148 Phillystran, 324–325 setbacks for, 195, 408

Index 431 Guyed towers debris pattern, 137–139 fall zone, 137–139 land requirements/orientation, 4–5 second anchors, 137

H Haley v. Town of Lincoln, 299 hallikainen.com, 97 “Hard Pressed” (Reich), 283 Hardell, Dr., 157 Harrassment, 327 Harvey Airfield, 166, 171, 174 Hately, Maurice, 235 Hawaii, 51, 185, 223 Hazardous substances/materials, 383–384 Haze Gray, 49, 190–191 HDTV antennas, 353–354 hdtvcolorado.com, 159, 162 hdtvhonestly.com, 160 Hearing room, 263–264 Hearings. See Public hearings Height requirements AM broadcasting, 232–247 considerations for drafting state statutes, 414–415 height-to-lot-line ratio, 404–405, 409–410 KinStar antennas, 190, 234–235 path profile, 103, 232, 233 UHF/microwave, 231–232 Valcom whip, 236 Heights towers, 52 Heller, Joseph, 222 Helm (E.G.), Jr. v. Louisville Two-Way Radio Corporation, 334 Hempstead, NY, 198, 329 Hesbacher, Gretchen, 95 heywhatsthat.com, 103, 185, 232 High voltage transmission lines, effect on property values, 200 highlandsranch.org, 182 Hillerby v. Town of Colchester, 299 Hiroshima tower, 136 Historic preservation

Historic Preservation Offices, 185, 187 National Historic Preservation Act, 81, 106, 185, 187 National Register of Historic Places, 81, 106, 120, 126, 169 resources, 214 State Historic Preservation Office, 25, 185, 187, 214, 243 Hoaglin, David C., 148 Hoenninger, Thomas J., 347 Holes, construction, 322 Homeowners’ association (HOA), 11 Hopengarten, Fred (author) letters responding to RFI complaints, 330–335 letters responding to windspeed requirement, 330–335 maxim of public hearings, 206 renewal request letter, 342 retainer letter, 29–31 technique for property value studies, 203–206 Horizon and visibility, 184–185 Horta v. Sullivan, 299 Hunter, D., 144

I IBC (International Building Code), 47, 92, 95, 135 Ice zone, 135 Idelson, Jim, 50–51, 276 Idelson, Sander, 50–51 Illinois, 15, 154, 334 Image/image editing software, 56 Imlay, Chris, 88, 189 imsisoft.com, 56 Inclinometer, 53 Indemnification, 382–383 Indiana, 95, 132, 143, 401, 402 Industrial area, 10 Ink by the barrel, 285 Inspections, 306 Insurance affidavit for permit, 72 certificate, 47, 72, 386 CGL, 47, 384–386

lease issues, 384–386 property, 386 umbrella policy, 47, 385 worker’s compensation, 386 Interference. See also RFI; TVI basics, 15–16, 195–199 CB interference statute, 337–338 lease issues, 377–380 Intervening trees/terrain, 103, 185, 186, 232, 233 Interviews with press, 282–283 Inverse square law, 272 IVI Due Diligence Services, Inc., 40

J Jacobi, Robert, 175 Jamison v. Texas, 202, 245 Johnson County Board of County Commissioners, Southwestern Bell Wireless, Inc. v., 35, 196, 272, 334, 401 Johnson, Lyndon Baines, 72, 289 Jones, Meredith J., 98

K K1ZM, 144, 146, 323 Kabbary, F.M., 235 Kane, Philip M., 29, 32–34, 329, 330 Kansas, 98, 196, 221, 272, 401 Kasevich, Raymond, 157 Katzman v. Anderson, 89 Kay, Leonard, 204 Kemper, Charles A., 217–218 Kennedy, John F., 72 Kentucky, 334 Kerlinger, Paul, 168, 220 KFI-AM tower, 67–68, 137–139 Kindergarten Cop (movie), 322 KinStar antennas, 190, 234–235 Kintronics, 353 Kissinger, Henry, 97 Kitchen brokers, 202 Knowledge, lack of, 57 Koor Communication v. City of Lebanon, 107, 142, 201, 232, 303 Kosowsky, Michael, 185

432

Index

Kovacs v. Cooper, 246 Kraemer, Shelley v., 88 KRKO-AM, 118 FONSI, 165–176 KROY rebuilding denial, 351 K-Y Filter, 199

L Ladue v. Gilleo, City of, 201 Lai, Henry, 157 Lake Cedar Group (Denver, CO), 159–165 Lakewood v. Plain Dealer Publishing Co., City of, 246 Land. See also Property values buying, 9–12 evaluating/walking antenna sites, 12 full disclosure of ownership, 3 leased, 356 selecting real estate agent, 9–12 topographical maps, 12, 44, 46 Landscape view, photograph, 203, 284 Langdon, John T., 83 Late rent payments, 371 Laws building codes, 92–107 CC&Rs, 83–90 copies/information about, 7–8, 44–45, 51–52 federal. See Federal laws leases, applicable/choice of, 391 local. See Local laws precedence of federal/state/ local, 399 state. See State laws Lawsuits CC&R violations, 87–89 leading cases/laws, 298 municipal immunity extended to discretionary acts, 299 overview, 22 recovering legal fees, 300–304 stress of, 299–300 suing antenna owner, 295–298 suing city/town, 76–77, 298–299

Lawyers. See Attorneys Lazaroff, Mike, 276 LBA Group, 353 Leach, Sid, 88 Lease issues 501(c)(3) tenants, 370 access, 357–359 access to revenue books/ records, 372 additional loads, 398 airtime loss, 380 AM towers, 373 amendments, 382 antennas, 361–363 arbitration, 392 assignment, 380–381 bankruptcy, 398 captions, 391 CC&Rs, 364 changes to installation, 363, 397 coax cables, 397 Communications Facility, definition, 366 condition of premises, 364, 389–390 consent, 390 construction for utilities, 381–382 contingencies, 374 counterparts, 390 deals, 398 default, 368, 398 default and right to cure, 386–387 easements for utilities, 361 emergency power, 396 execution, 390 extension rentals, 371 fee simple, 388–389 force majeure, 382 government approvals, 374 hazardous substances/ materials, 383–384 height creep, 361, 397 indemnification/indemnity, 382–383 insurance, 384–386 interference, 377–380 land requirements, 356, 397–398

late rent payments, 371 law, applicable/choice of, 391 most favored nation clause, 365–366 ownership clause, 366 payments for utility construction, 381–382 permits/costs, 396 premises, 356–364 Quiet Enjoyment/Quiet Possession, 364–366, 388–389 removal bond, 398 removal of equipment, 389–390, 398 renewal of lease, 367–368 renewal rent increases, 372 rent, 370–372 rent increases, 372, 375–377 revenue sharing, 372–373 review payments, 357, 374, 393 Right of First Refusal, 396 severability, 391 SNDAA, 392–394 start date for rent payments, 371, 397 start/commencement of lease, 367 sublet, 381 suitability/due diligence period, 374 Table of Contents missing, 355 taxes, 394–395 term of lease, 366–370 termination, 368–370, 398 termination and condition of property, 389–390 tips, 397–398 title, 364–366, 388–389 transfer of warranty, 364 underground storage tanks, 384 use clause, 356–357, 363 utility poles/service, 360–361, 381–382 wind-load upgrades, 363–364 Lease regulations, 357 Leavitt, Posey v., 246

Index 433 Lebanon (NH), Koor Communication v. City of, 142, 201, 232, 303 Lebanon, NH, 64, 107 LED lighting, 226 Legal fees fees for attending hearings, 17, 34–35 Letter of Understanding, 27–29 no recovery for cellular/ CMRS cases, 303 recovery for broadcasters, 303–304 recovery for OTARD rule lawsuits, 304 suing to recover legal fees, 300–304 Letter to the Editor, 284–286 Letters to law firms (Letter of Understanding), 27–29 permission to act as agent for landlord, 47 vs. petitions, 18–19 from real estate agents, 40–41 request for renewal, 341 retainer letters, 29–34 sample, responding to RFI complaints, 327–335 of support, 17–21, 47 Levitt, B. Blake, 164 Licensed Contractors, 41–42 Light shields, 223, 225 Lighting bird study, 226 environmental issues, 214, 223–230 existing, compliance of, 225 LED lighting, 226 preemption, 225 safety issues, 143, 177–179 Lightning, 177–179 lightningrod.com, 178 Lincoln, Fred Hopengarten v. Board of Appeals of, 342 Lincoln, Haley v. Town of, 299 Lincoln, Mass., Omnipoint v. Town of, 293 Line-of-sight paths, 46, 103, 232, 233

Litigation. See Lawsuits Loans and stick value, 35 Lobbying, 415–416 Local laws CC&Rs, 83–90 copies/information about, 7–8 health/safety regulations, 152–155 precedence of federal/state/ local laws, 399 zoning bylaws/ordinances, 51–52, 90–92 Lookout Mountain, 159–165 Loose-leaf binder w/ section dividers, 44 Loschavio v. City of Dearborn, 304 Losing decision, 289 Louisville Two-Way Radio Corporation, E.G. Helm, Jr. v., 334 Lovell v. Griffin, 202, 245 Lowell, Mark, 178 Lubliner, Jay, 98

M MacGibbon v. Board of Appeals of Duxbury, 291 Maine, 30, 31, 79, 147, 267, 299 Maintenance damage repair, 348–349 fencing, 347–348 permits, 349 strengthening, 349–350 Man of the House: The Life and Political Memoirs of Speaker Tip O’Neill (Novak), 17 Manchester, Merrill v. City of, 242, 299 Manufacturer’s specifications/ installation requirements for your tower, 52 Manville, Albert M., 164 Maps, 46 assessor’s/neighborhood, 44, 46 plot plans, 44, 46–47 topographical, 12, 44, 46 U.S. Geological Survey (USGS) maps, 10, 44 maps.google.com, 54 Martin v. Struthers, 202, 245

Maryland, 97–98, 200 Maryland Community Newspapers Online, 239 Maryland Consumer Protection Act, 157 Maryland Medical School, 217 Mason, Perry, 187 Massachusetts, 22, 37, 38, 74, 153, 154, 204, 295, 299, 342, 409 Fred Hopengarten v. Board of Appeals of Lincoln, 342 GIS website, 232 Haley v. Town of Lincoln, 299 Omnipoint v. Town of Lincoln, Mass., 293 Massachusetts Appeals Court, 342 Massachusetts Audobon Society, 223, 224 Massachusetts Building Code, 92–94, 413 Massachusetts General Laws, 262, 281, 300, 402 Massachusetts Regulations, 92 Massachusetts State Building Code, 412 Matter of Parkview Assocs. v. City of New York, 298 Mattson v. City of Chicago, 91 Maximum permissible exposure (MPE), 115, 150 Meade, KS (municipality) case, 97–98 Mechanical fuse, 136–137 Meetings. See also Public hearings attending to know the process, 6–7 informal discussions, 60–70 schedule for formal zoning, 69 Menacing, 327 Merrell Dow Pharm., Inc., Daubert v., 157 Merrill v. City of Manchester, 242, 299 Metromedia v. San Diego, 201, 245, 303 Michaels, Still v., 333 Michigan, 83, 226 Michigan Natural Features Inventory, 226 Migratory Bird Management, Office of, 220

434

Index

Migratory Birds, 220–223 Minimum yard, 46 Minnesota, 216, 217, 333 Minnesota Public Radio (MPR), 227, 229 Miscellaneous section of lease, 390 Mississippi, 42 Mobile services, federal law relating to, 111–112 Model Siting Legislation, 399, 414 Model Siting Ordinance, 399 Most favored nation clause in lease, 365–366 Motion for Summary Judgment, 296–297 Motorola, Inc., Newman v., 117, 157 Mount Ephraim, Schad v., 202, 245, 246 MPE (maximum permissible exposure), 115, 150 MSN TerraServer website, 54 Municipal Counsel, 77–78 Municipal immunity, 76–77, 298–299 My Property documents, 44

N Nancy Reagan posture, 2 National Electrical Code (NEC), 96 National Environmental Policy Act of 1969, 118–129 National Geographic maps, 12 National Historic Preservation Act (NHPA), 81, 106, 185, 187 National Register of Historic Places, 81, 106, 120, 126, 169 National Tower v. Plainville Zoning Board of Appeals, 293, 303 Native American sites, 39, 169, 214 Native American tribes, 185 Neader, Scott, 328 Neighbors canvassing neighborhood, 17–18 convinced of negative impact, 58–60 fear of unknown, 57–58 G-2 (good gossip) on, 20 informal discussions with, 62

obtaining favorable letters from, 21 petitions, 18–19 retail politics, 17 sample letters responding to RFI complaints by, 327–335 steamroller effect, 21 TVI/RFI complaint by, 325–327 TVI/RFI complaint by guntoting, 336–337 Nello, 52 NEPA (National Environmental Policy Act) compliance, described, 211–215 exclusions, 187 Nevada, 76, 251, 402 New Hampshire, 72, 303, 350, 351, 399. See also Lebanon, NH New Hampshire Supreme Court, 64, 234, 240, 245, 292, 304 New York, 198, 298, 300, 350, 351 Saia v. New York, 246 New York City City of New York v. 17 Vista Associates, 298 Matter of Parkview Assocs. v. City of New York, 298 New York Times, 164, 182 Newman, Christopher, 117 Newman v. Motorola, Inc., 117, 157 Newspaper advertisements, 261–262 Newsrack bans, 246 nfpa.org, 96 NHPA (National Historic Preservation Act), 81, 106, 185, 187 “No Hazard” FAA decision, 144, 146 Noise, 206–209 cumulative, 207 engineering solutions, 208–209 generator testing/exercising, 206 ordinance problem (example), 208 preemption, 207

types of, 206 where to measure, 206–207 Nomenclature, 272, 273 Non-plan freeze, 90–92 Nonthermal health effects, 159, 286 Non-zoning ordinances, 414 North Carolina, 42 Notebooks identifying specific objections, 70–71 identifying supporters/ opposition, 70 preparing, 43–45 taking notes, 70 Notices Notice to Airmen (NOTAM), 144 posting. See Posting of public hearings, 261–263 regarding leases, 387–388 Nott, Ltd., 353 Novak, William, 17 Null hypothesis, 149

O Objections. See Aesthetics; Height requirements; Interference; Noise; Property values; Safety issues O’Connell, James, 13, 15, 85, 86, 190, 259 OET-65 (OET Bulletin 65), 36, 116, 149 Off the record, 283 Offers, purchase, 12–15 contingent offer, 84–86 forms, 13–15 Ohio, 95, 131, 370 Oliver v. AT&T Wireless Services, 247 Omniform (ScanSoft), 72 Omnipoint v. Town of Lincoln, Mass., 293 On the record, 283 O’Neill, Thomas P. (Tip), 17 Opposition convinced of negative impact, 58–60 fear of unknown, 57–58 lack of knowledge, 57

Index 435 Option, lease, 367 Ordinances. See Bylaws; Zoning bylaws/ordinances OTARD (Over-the-Air Reception Devices) rule, 79–83, 97–107, 304, 400 Over-the-Air Reception Devices (OTARD rule), 79–83, 97–107, 304, 400 Owner of existing antenna. See Antenna owners Ownership clause in lease, 366 Ownership of property, full disclosure, 3

P Paging, federal law relating to, 111–112 Painting requirements, 143, 190–191 Palmer v. Saratoga Springs, 198 Paper the file, 75 Paramount Pictures, Inc., United States v., 201, 245, 303 Participants and Congressional Briefing Overview, 164 Passenger Pigeon, The, 217 Path profile, 103, 232, 233 Patterson, Jim, 225 Payments revenue-sharing, 373 to review lease documents, 357, 374, 393 PCIA (Personal Communications Industry Association), 399–400 pcia.com, 207, 399, 414 PCS, federal law relating to, 111–112 PDF format, converting applications to, 251 PE seals, 36–38. See also Professional Engineer (PE) Pennsylvania, 11, 83, 234, 257 People ex rel. Hoogasian v. Sears, Roebuck and Co., 334 Permission to act as agent for landlord, 47 Permit applications. See also Application process binding, 254

blank pages, 259 checking before printing, 251 collating, 252 color printing, 252 converting to PDF, 251 cover page, 259–260 covers for, 252 date/time stamping, 250, 254, 255–257 delivery, 253, 254 editing sample document, 250 filing, 250–251 follow up, 258 overview, 249 photo of submission, 255 printing quantity/quality, 253–254 purpose of, 250 reluctant recipient, 256–258 sample document, 249 single/dual-sided printing, 252 submitting, 254–258 Permits, building. See Building permit process Perspective in photos, 49–51 trees and screened views, 47, 183, 272 Peterson, Wayne, 223, 224 Petitions, 18–19 phazar.com, 191 Phillystran, 324–325 Photographs of application submission, 255 for applications, 48–49 of comparables, 49 digital cameras, 51 documenting completion, 316 as fair representation, 49–50, 187–188 image/image editing software, 56 landscape/portrait orientation, 203, 284 My Property documents, 44 photo perspective, 49–51 for press, 284 property value research, 203–204 showing antennas on, 56 suitable, 47

Photosimulation, 56, 354 Pictures. See Photographs Pirod, 52, 284 Plain Dealer Publishing Co., City of Lakewood v., 246 Plainville Zoning Board of Appeals, National Tower v., 293, 303 Plan freeze, 90–92 Planning Board characteristics of, 75 informal discussions with secretary of, 66–68 Players informal discussions with, 60–70 learning about, 8 objector convinced of negative impact, 58–60 objector fearing the unknown, 57–58 types of, 57 Playtime Theatres, Inc., City of Renton v., 246 Pleasantville (movie), 76 Plot plans, 44, 46–47 POA (property owners’ association), 83–84, 86–87 Poem, An Amateur Radio Tower, 132–133 Portrait view, photograph, 203, 284 Posey v. Leavitt, 246 Posting building permits, 305–306 “Danger: High Voltage” signs, 324 fall zone warnings, 142 public hearings, 262 registration number, 323–324 Potomac Ridge Homeowners’ Association case, 97–98 PowerPoint presentations, 69–70 Precedence of federal/state/local laws, 399 Preemption AM broadcasting, 236–245 applicability, 60 FCC on, 154–155 federal law information, 45 FM/TV broadcasting, 247

436

Index

Preemption (continued ) Koor Communication v. City of Lebanon, 107, 142, 201, 232, 303 lighting/marking towers, 225 noise ordinances, 207 OTARD rule, 79–83, 97–107, 304, 400 preformed.com, 148 Premises, lease, 356–364 Preparations answer cards, 131, 198–199, 268 bound notebook, 43–44 computer w/ applications, 53–56 copies of relevant state law, 52 copies/information about laws, 7–8, 44–45, 51–52 documents you may need, 45–47 GPS receiver, 53 great impressions for great decisions, 48 handheld compass, 52 importance of, 5–8 inclinometer, 53 know the laws, 7–8 know the players, 8 know the process, 6–7, 65 know what you want, 6 long tape measure, 52 loose-leaf binder w/ section dividers, 44–45 manufacturer’s specifications/ installation requirements for your tower, 52 My Property documents, 44 pictures, 48–49 Presentation at public hearing, 264, 266–270 Preservation. See Historic preservation Press interviews with, 282–283 Letter to the Editor, 284–286 photographs, 284 Presumption of regularity, 203, 205 Pre-trial conference, 296

Primal Fear, 298 Principal structure, 194 Principles that help you win be nice/flexible, 8 building winning team, 2 committing yourself to win, 1–2 full disclosure policy, 3–5 preparation. See Preparations wearing white hat, 2–3 Printing permit applications, 252–254 Prior existing structure, 314–315, 340 Professional Engineer (PE) requirement for independent PE, 73 seals, 36–38 as team members, 35–36 Property insurance, 386 Property values, 200–209 arguing First Amendment, 201–202 borrowing no-impact studies, 200–201 comparables, 202 creating your own study, 202 expert opinions, 201 high voltage transmission line effect on, 200 photographs of existing systems, 203–204 possible attacks on data, 204–206 reference materials, 272–274 studies by real estate professionals, 202–203 study based on public data (Hopengarten technique), 203–206 wind development effect on, 200 Proposed Decision and Order, 280 Public file, 262–263 Public hearings, 21 approach to discussion, 267–268 bioeffects/hazards reference material, 272 bird-related reference material, 274

bringing reference materials to, 271–274 cases, related, 272 checklist for, 264–265 citing exact section of law, 266 contact with press, 282–286 continuances, 277–280 deliberations/decisions, 22, 287–290 federal/state/local law reference material, 271 Hopengarten maxim of, 206 making/breaking your case, 274–277 newspaper advertisements, 261–262 nomenclature reference material, 272, 273 posting, 262 presentation, 266–270 presentation timing, 264 process/procedures during, 264–265 property value reference material, 272–274 public file, 262–263 public service citations, 272 RFI reference material, 271–272 Robert’s Rules of Order, 267 screening/sight line reference material, 272 submitting proposed decision/ order, 280–281 substance, 270 suggested answers for questions, 269–270 summary, 270 visiting hearing room, 263–264 Public interest, convenience and necessity, 87, 167, 247–248, 275 Public Law, 106-521, 337 Public Law, 109-466, 163 Public records and property value studies, 203 Public service, 272, 283 Puerto Rico, 108

Index 437 Purchase and sale offer/contract, 12–15

Q Questions/answers at public hearing, 268–270 Quiet Enjoyment/Quiet Possession, 364–366, 388–389

R Radio Frequency Interference. See RFI Radio Mobile Deluxe freeware, 232 Radio World, 143, 218, 236 Radio World Engineering Extra, 236 Radiofrequency Radiation — Hidden Health and Environmental Effects (Levitt), 164 Railton, William, 168 Raining (It’s raining), 298 Rancho Palos Verdes et al. v. Abrams, City of, 303 Randolph, Eleanor, 181 Reagan, Ronald, 267 Real estate agent commercial, 10 commercial buyer’s agent, 11 letter of support, 40–41 purchase and sale offer/ contract, 12–15 selecting, 9–11 testimony, 40 what to tell, 11 Real estate appraisers, 202–203 Reasonably related, 401 Reckless endangerment, 327 Red lights, 143, 226 Red Lion Broadcasting Co. v. FCC, 201, 303 Red-eyed vireo (Vireo olivaceus), 217 Reed v. Williamson, 89 Regularity, presumption of, 203 Regulations, lease, 357 Reich, David, 283 Rein, Wiley, 162 Reluctant recipient of permit applications, 256–258

Remedy, 293–294 Removal bond, 398 Renewable Energy Policy Project (REPP), 200 Renewals basics of, 338–339 bond to guarantee removal, 345 frequency of, 339 handling, 341 late to renew, 343–345 lease, 367–368 one year, then permanent, 339–340 period coinciding with license renewal, 340–341 request letter, 341–343 three years, then permanent, 340 Rent, 370–372 increases, 372, 375–377 Renton v. Playtime Theatres, Inc., City of, 246 Repairs, 348–349 Replacing/reinforcing towers, 350 Reporter and interviews, 282–283 REPP (Renewable Energy Policy Project), 200 Required yard, 5, 47, 194–195, 250 Retail politics, 17 Retainer letters, 29–34 Reuther, Walter, 78, 298 Revenue sharing, 372–373 RF emissions, 47 RF exposure association vs. causality, 176–177 difficulty of proving a negative, 148–149 FCC on Federal preemption, 154–155 federal law relating to, 114–116 Lake Cedar Group (Denver, CO), 159–165 local health/safety regulations, 152–155 Newman v. Motorola, Inc., 157 safety guidelines, 149–152 state law relating to, 117–118

tort law relating to, 117 Vatican Radio, 152 WIZN-FM, 117–118, 156–159 RFI (Radio Frequency Interference), 195–199 applicant’s assurance, 198–199 Broyde case, 196 complaint by neighbor, 325–327 complaint by neighbor with gun, 336–337 complaint by town official, 325 complaints, letters responding to, 327–335 decreasing with antenna height, 197–198 FCC’s Interference Handbook, 198, 329, 334 fixing, 15–16 Freeman case, 35, 117, 156–159, 196, 272, 334, 401 installing filters, 199 lease issues, 377–380 OET-65, 36, 39, 116, 149 reference materials, 271–272 resources, 198 Southwestern Bell case, 35, 196, 334, 401 U.S. Code, 35, 271–272, 331, 338, 400–401 RFI information, 16 Right of First Refusal, 396 Right to Cure, 386–387 Robert’s Rules of Order, 267 robertsrules.org, 267 Rock Against Racism, Ward v., 246 Rocky Mountain News, 162 Rohn Manufacturing safety letter, 141 Rohn towers, 52, 136, 147, 191–192, 323, 351 rohnnet.com, 52 Rooney, Kate, 161 Rottkamp v. Young, 298 Round Rock v. Smith, City of, 299 Rule, 11, 301–320

438

Index

Rules of Professional Conduct (American Bar Association), 38

S Sabre Communications Corp., 140 Sabre towers, 52, 284, 351 safety letter, 140 Safety issues airspace safety, 142–144 attractive nuisance and child safety, 144–148 building codes, 134–135 fall zone, 135–142 lightning, 177–179, 214 possible failure and denials, 139 radiation and emissions safety, 148–177 structural safety, 133–134 Saia v. New York, 246 Sakrison, Paul, 139 Salazar, Ken, 162 San Diego, Metromedia v., 201, 245, 303 Sanctions, 301–302 Sands Point (NY), Bodony v., 263 Saperstein, Michael, 399 Saratoga Springs, Palmer v., 198 Satellite TV, OTARD rule, 79–83, 97–107, 304, 400 Schad v. Mount Ephraim, 202, 245, 246 Schneider v. State, 202, 245 Schwarzenegger, Arnold, 322 Screened views, 47, 183, 272, 404–405 Seals, PE, 36–38 Sears, Roebuck and Co., People ex rel. Hoogasian v., 334 Section 106 of NHPA, 187 SEQRA (State Environmental Quality Review Act), 39 Setback bylaw requirements, 193–194, 403–406 for guy wires, 195, 408 vs. visibility, 404–405 Severability, 391 Shelley v. Kraemer, 88 Shore Communications, Inc., Evans v., 246

SHPO (State Historic Preservation Office), 25, 185, 187, 214, 243 shva.com, 99 Signs. See Posting Single/dual-sided printing, 252 Site acquisition businesses, 58 Site plan review, 66 Site visits, 12, 21–22, 279–280 Skotdal, Andy, 165–166 Sky-clutter, 181 Smardon, Richard, 181 Smith, City of Round Rock v., 299 SNDAA (Subordination, NonDisturbance, and Attornment Agreement), 392–394 South Dakota Public Utilities Commission, 399 Southwestern Bell Wireless, Inc. v. Johnson County Board of County Commissioners, 35, 196, 272, 334, 401 Spaghetti defense, 195 Special Exception, 16, 51 Special Permits application form, 44 overview, 16 Special Use Permit (SUP), 16, 51 Specification sheets, 47 Specifications/installation requirements for your tower, 52 SPLAT!, 232 Spreadsheet software, 56, 185, 186 Sque, Steve, 184 Stamping, date/time, 250, 254, 255–257 Standish, Adriance v. Town of, 299 star-h.com, 234–235 Start date for rent payments, 371, 397 Start/commencement of lease, 367 State Historic Preservation Office (SHPO), 25, 185, 187, 214, 243 State laws building codes, 92–96 bylaws meeting requirements of, 401–403 citing FCC reports/orders, 414 drafting state statute, 414–416

height considerations, 414–415 increasing scope of, 414 lobbying, 415–416 prohibiting enforcement of CC&R, 89 reference materials, 271 relating to RF exposure, 117–118, 153–154 State, Schneider v., 202, 245 Stations/carriers in town, 62 Statute, drafting, 414–416 Steamroller effect, 21 Stewart, B.G., 235 Stick value, 35 Still v. Michaels, 333 Stohl, Bill, 276 Stokes Communications, 223, 225 Stop work order, 319 Straw man, 10 Strengthening, 349–350 Stress of lawsuits, 299–300 Strobe lights, 226 Structural safety, 133–134 Structure type, 410 Struthers, Martin v., 202, 245 Studio-to-transmitter link (STL) analysis, 12 Sublet, 381 Submitting permit applications, 254–258 proposed decision/order, 280–281 Subordination, Non-Disturbance, and Attornment Agreement (SNDAA), 392–394 Suing. See Lawsuits Suitability/due diligence period, 374 Sullivan, Horta v., 299 surplussales.com, 189 Surveyors, 38–39 Svoboda & Associates, 227 Swartz, John, 13

T Table of Contents, lease, 355 Tape measure, 52 Tarrant, Gerald R., 158 Tax maps, 44, 46 Taxes, 394–395 Team roles

Index 439 attorneys, 27–35. See also Attorneys building winning teams, 2 contractors, 41–42 environmental/regulatory consultants, 39–40 experts, 26 identifying your strengths/ needs, 25–26 other antenna owners, 19–21, 26 real estate agents, 9–15, 40–41 registered professional engineer, 35–36 surveyors, 38–39 Technical standards antenna site, 308–312 construction practices, 312–313 Technologies, alternative, 231 Telecommunications Act of 1996 (TCA), 60, 97, 155, 293, 303, 400 Television interference. See TVI (Television Interference) Tennessee, 42, 201, 274 Term, lease, 366–370 Termination, lease, 368–370, 389–390, 398 Terrain mapping, 103, 185, 186, 232, 233 Testimony at a legislative hearing, 415 Texas, 83, 202, 245, 299 Texas, Jamison v., 202, 245 Thompson Hine, 237–245 Thorne Consultants, 200 TIA-222, 47, 94–96, 134–135 Time stamping, 250, 254, 255–257 Timeframe for application process, 22 Timelines, documenting events, 55 titantv.com, 99 Title and leases, 364–366, 388–389 Title Defects, 364–365 T-Mobile case, 131–132 Tolling, 164–165 Top hat (capacity hat), 67 Topo software (DeLorme), 232, 233 topo.com, 46 Topographic maps, 12, 44, 46, 232

TopoZone, 12, 44, 46, 54, 232 TopoZone Pro service, 12 Tort law relating to RF exposure, 117 TOWAIR, 144 towerkill.com, 220–221 Towers additional antennas, 350–351 constructing. See Construction damage repair, 348–349 described, 45 replacing/reinforcing, 350 strengthening, 349–350 types of, 57 tower-technologies.com, 350 Town Planner, 66–68 Towns, background information on, 19–20 trails.com, 232 Trees intervening trees/terrain, 103, 185, 186, 232, 233 removing, 321 screened views, 47, 183, 272, 404–405 Tucci, Cardinal Roberto, 152 Turner Broadcasting System, Inc. v. FCC, 201, 303 TV antennas, OTARD rule, 79–83, 97–107, 304, 400 TVI (Television Interference). See also RFI cases involving, 196 complaint by neighbor, 325–327 complaint by town official, 325 decreasing with antenna height, 197–198 fixing, 15–16 lease issues, 377–380 Twain, Mark, 285

U UBC (Uniform Building Code), 47, 135 UHF/microwave, 231–232 Umbrella policy, 47, 385 Underground storage tanks, 384 United States v. Paramount Pictures, Inc., 201, 245, 303

U.S. Fish & Wildlife Service (USFWS), 168, 214, 220–221, 274 U.S. Geological Survey (USGS) maps, 12, 44, 46, 103, 232 U.S. Tower, 52, 284 USA Today, 152 Use clause in lease, 356–357, 363 USFWS Concerns over Potential Radiation Impacts on Migratory Birds and Other Wildlife (Manville), 164 Utilities, lease issues, 360–361, 381–382 Utility Poles, lease issues, 360–361

V Vail, Martin, 298 Valcom whip, 236 Variances alternative for better aesthetics, 191–195 overview, 16–17, 51 Vatican Radio, 152, 176 Vermont, 22, 117–118, 156, 164, 196, 240, 272, 299, 401 Vermont cases, 299 Vermont Environmental Board, 118, 158, 223, 265 Vested rights, 90–92 Vexatious claim, 296 Video delivery services, 400 Viewing land/property, 12, 21–22, 279–280 Vinikoor, Bob, 292 Violations CC&R violations, 87–89 fence violations, 347–348 setbacks and yards, 191–195, 403–405 Virgin Islands, 108 Virginia, 409 VirtualEarth (Microsoft), 185 Visibility of antenna system, 184–185, 404–405. See also Aesthetics

W Waivers, 82, 99, 402 Walking sites, 12. See also Land Ward v. Rock Against Racism, 246

440

Index

Warnings, posting “Danger: High Voltage” signs, 324 fall zone warnings, 142 Warranty, transfer of, 364 Washington (state), 407 KRKO-AM, 118, 165–176 We Are Unprotected: High-Powered TV & FM Broadcast Radiation on Lookout Mountain (Carney), 164 Websites acme.com/mapper, 44, 46 adobe.com, 251 airspaceusa.com, 144 antennazoning.com, 117–118, 234 arrl.org, 325 awea.org, 227 birds.cornell.edu, 218 c-a-r-e.org, 160, 164 corrosionchronicle.com, 191 currykerlinger.com, 220 darkskyinitiative.org, 223 delorme.com, 46 earth.google.com, 44, 46 fairradio.com, 189 fybush.com, 182 getawaiver.com, 99 grinnellgroup.com, 159 hallikainen.com, 97 hdtvcolorado.com, 159, 162 hdtvhonestly.com, 160 heightstowers.com, 52 heywhatsthat.com, 103, 185, 232 highlandsranch.org, 182 imsisoft.com, 56 kintronic.com, 353 ky-fi lters.com, 199 lbagroup.com, 353 lightningrod.com, 178 maps.google.com, 54

nfpa.org, 96 nottltd.com, 353 pcia.com, 207, 399, 414 phazar.com, 191 preformed.com, 148 RFI information, 16 robertsrules.org, 267 rohnnet.com, 52 shva.com, 99 star-h.com, 234–235 surplussales.com, 189 titantv.com, 99 topo.com, 46 topozone.com, 12, 44, 46, 54 TOWAIR, 144 towerkill.com, 220 tower-technologies.com, 350 trails.com, 232 valcomguelph.com, 236 wikimapia.org, 232 wileyrein.com, 162 wirelessestimator.com, 41, 42, 92, 94, 96 wsobirds.org, 217 zillow.com, 204 Weekend construction, 319–320 Wet seal/wet stamp, 36–38 Wetlands, 46 What I bring to hearings, 271 White hat, 2–3 wikimapia.org, 232 Wilderness areas, 214 Wildlife danger to birds, 216–223 government agencies, 214 habitat surveys, 39 wileyrein.com, 162 Williamson, Reed v., 89 Wind development effect on property values, 200 Wind Energy Association, American, 227 Wind load, 46, 94, 135, 363–364

Wind speed, 94, 411–414 Winning decision, 288–289. See also Principles that help you win Wireless and Broadcast Radiation Pollution: A U.S. Regulatory Issue, 164 Wireless Communications Facilities section, zoning bylaws, 51 Wireless Estimator, 41–42, 92, 94, 96 Wisconsin, Eau Claire, 216–220 WISPs, OTARD rule, 79–83, 97–107, 304, 400 WIZN-FM, 117–118, 156–159 WLTH-AM, 143 Word processing software, 55–56, 250 Work, informal discussions at, 60–62 Worker’s compensation insurance, 72, 386 Worthington, John, 185 wsobirds.org, 217 WYGG(FM), 165

Y Yackey, Allan L., 401 Yankowitz, Robert, 354 Yard, required, 5, 47, 194–195, 249 Young, Rottkamp v., 298

Z Zillow, 204 Zoning authority/boards characteristics of, 75–77 conflict of interest, 73–74 informal discussions with secretary of, 68–70 types of, 71–74 Zoning bylaws/ordinances. See Bylaws