07-24-1996 - Laserfiche WebLink

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Opinion Equal Protection: Treating All Carriers Alike In the March issue of Wireless Update (Vol. 1, No. 1), three sub -sections of the Telecommunications Act of 1996 were reproduced. The authors of Wireless Update believe that Section 704(a)(7)(B) of the Act will generate the most debate within local govemments: The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof - shall not unreasonably discriminate among providers offunctionally equivalent services; and shall not prohibit or have the effect of prohibiting the provision of personal wireless services. At first glance, this appears to be a restatement of the 14th Amendment to the U.S. Constitution: all citizens are entitled to due process and to equal protection under the law. A closer look at the above sub -section, however, raises the following issues: ■ "Unreasonably discriminate" - would the permitting of several wireless antennas in a particular zoning district in 1996, and the subsequent denial of a new permit in the same district in 1997, be reasonable? • "Functionally equivalent" - is PCS functionally equivalent to cellular? Is GSM functionally equivalent to CDMA? Are panel antennas functionally equivalent to whip antennas? • "Have the effect of prohibiting" - can a discretionary review continue to deny applications until the carrier "gets it right," and, if the carrier loses patience, will that carrier have the right to seek redress in the courts? ■ What about a variance? Must a variance that is granted to one carrier be available to the others? Don't all variances tend to discriminate? These are loaded questions, particularly in a community that limits any type of land use (or accessory use) on the basis of saturation. For example, does your community guard against the proliferation of adult bookstores, tanning salons, chain stores, shopping centers or any other use that some may find objectionable when concentrated in one area? Keep in mind that the best cell sites are in a few selected locations. The first carrier in the best location will tend to subject the next carrier to a less desirable location nearby. This will, in turn, 4.1 force the third carrier in that location to an even less desirable cell site, and so on until the permit process is subject to challenge by the last carrier to apply. The Telecommunications Act of 1996 would be easy to implement at the local level if all the carriers were identified and prepared to deploy their cell sites at the same time. But, as discussed in the article below, it is impossible to even estimate who all the carriers will be and when they will be ready to deploy. Who Will All the Carriers Be? And Where Will They All Want CeII Sites? Wireless Update asked the first question of Michael Wack (202-418-1322) of the FCC. His answer (and he was trying to be as helpful as he could be) was "Your guess is as good as mine." There are two cellular carriers per CGSA [Cellular Geographical Service Area, a multi -county trade area roughly equivalent to a Primary Metropolitan Statistical Area (PMSA)]. In 1995, FCC auctions for two PCS carriers were held for 51 multi -state areas (MTAs or Major Trade Areas). Two CGSAs plus two MTAs equal four carriers. Now a BTA (Basic Trading Area, several of which nest in • an MTA) auction is being held. That makes five carriers, and three more BTA auctions are planned. The total of eight carriers really becomes nine when Nextel (neither PCS nor cellular, but Enhanced Mobile Services Radio) is considered. Even if nine carriers were the upper limit (and nine is probably a low number), it will be years before all carriers apply for all of their cell sites. It's a first -come, first -served situation: some cities and counties have yet to hear from the first PCS carrier or its consultants. As the prime cell site locations-g he -following -questions will get raised by the Johnny-come-iatelys: • Why does the last carrier to apply get penalized? ■ Can the city or applicant force an existing carrier into a "double up" or co -location arrangement? • What happens when an area becomes saturated with antennas? (And who defines "saturation"?) These are the kinds of issues that suggest a Wireless Antenna Master Plan. Is it possible to plan for all wireless antennas before the several carriers apply, or should cities and counties continue to react to each individual (or batch) cell site application? This is a question that Wireless Update will answer in succeeding issues. What:Does>Kreines:8,.Kreines Ifireines c&. KrerneS; iflC. offers wireless antenna planning; services to cities and counties. In one Bay Area city:this:in° Kreines &:Kreines Inc.. staff will_:be ieading a workshop on how to plan. permit •and>monito these new devices Published by Kreines 8 Kreines, Inc., 58 Paseo Mirasol, Tiburon, CA 94920, (415) 435-9214