AT&T Comments on Small Cell Guidelines Correspondence Copyrighted
March 18, 2019
City of Dubuque Consent Items # 11.
ITEM TITLE: AT&T Comments on Small Cell Guidelines
SUM MARY: Senior Counsel submitting correspondence from AT&T
regarding the City of Dubuque's Small Cell Guidelines
adopted at the January 7, 2019 City Council meeting.
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File
ATTACHMENTS:
Description Type
Staff Memo Staff Memo
Gentry Letter-AT&TComments Supporting Documentation
THE CITY OF Dubuque
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BARRY A. LINDAHL, ESQ.
SENIOR COUNSEL �
To: Mayor Roy D. Buo d
Members of the Cit Council
DATE: March 6, 2019
RE: City of Dubuque Small Cell Guidelines
At the January 7, 2019 City Council meeting, the City Council adopted the Small Cell
Design Guidelines for the City of Dubuque.
Attached for your information is a letter from AT&T with AT&T's initial comments on the
Guidelines. AT&T indicates that it will provide additional comments at a later date.
We will be happy to meet with AT&T to discuss any specific issues the company may
have on applications for small cells.
BAL:tIs
Attachment
cc: Michael C. Van Milligen, City Manager
Crenna M. Brumwell, City Attorney
Craig Nowack, Cable Administrator
Chris Kohlmann, Information Services Manager
F:\Users\tsteckle\Lindahl\Memos\MayorCouncil_CityOfDubuqueSmallCellGuidelines_030619.docx
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 IV�AIN STREET DUBUQUE, IA 52001-6944
TE�EPHONE (563)583-4113/Ffvc (563)583-1040/EMai� balesq@cityofdubuque.org
Caroime H Gentry January 14, 2019
cgentry@portenvnght com
Pone�w��9n� VIA E-MAII.—rdbuol(c�citVofdubuque.org; rjones(a�cityofdubuque.org;
MOmS�Arthut lLP dresnick(a�citvofdubuque.orq; bshaw�cityofdubuque.orq;
One South Main Street
Suite 1500 Ideltoro(a�citYofdubuque.org; kmiarson(c�cityofdubuque.org;
Dayton,Ohio 45402 irias(a�cityofdubuque.orq; ctymgr(a)citYofdubuque.org
Direct: 937-449-6748
Fax: 937-449-5820 Gity of Dubuque City Council
Main. 537-449-6810 50 W. 13th St.
Dubuque, IA 52001
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RE: AT&T's Initial Comments to (1} City of Dubuque
Smail Cell Design Guidelines,and (2) Ordinance
�/���.����'��wri ht �stablishing Small Cell Aesthetic Guidelines
g Program
c�Nc��,NAT� Dear Mayor Buol, Council Members Jones, Resnick, Shaw, Del Toro, Larson
CLEVELAN� and Rios, and City Manager Van Milligen:
COLUM1�18t1S
D4YTQ`�
Nq��Es M write on behalf of New Cingular Wireless PCS, LLC d/b/a AT&T
PITTSSURGN Mobility (AT&Tj to provide AT&T's initial comments on the City's proposed
WASHINGTON.DC ordinance to establish a Small Cell Aesthetic Guidelines Program (`Proposed
Ordinance"}and to adopt draft Small Cell Design Guidelines("Draft
Guidelines"). We note that the agenda and materials for tonight's meeting
indicate that the City Council plans to take the extraordinary step of adopting
the Proposed Ordinance and Draft Guidelines on initial reading. Given the
importance and complexity of this legislation, AT&T respectfully requests and
recommends that the Gouncil pause its deliberations briefly in order to be able
to consider input fram the wireless services industry.
AT&T appreciates the City's effort to update its laws based on recent
advancements in wireless technolo�qies and the Federal Communications
Commission's Infrastructure Order. AT&T also appreciates the City's intention
to "[e)nhance the ability of wireless communications carriers to deploy small
celf wireless technology in the City quickly, effectively and efficiently so that
residents, businesses and visitors benefit from ubiquitous and robust wfreless
service availability,"as well as the City's recognition of its obligation to
"[c�om�ly with, and not conflict with or preempt, all applfcable state and federal
laws."
The following are initial comments AT&T has regarding the Proposed
Ordinance and Draft Guidelines. AT&T reserves its right to provide additfonal
comments at a later date when it has had the opportunity to review and
consider these documents in greater detail.
' See In the Matter of Accelerating Wireless Broadband Deptoyment by
Removing Sarriers to Infrastructure Investment(WT Docket No. 17-79),
Declaratory Ruling and Third Report and Order, FCC 18-133 (September 27,
2018) ("Infrastructure Order") (effective date Jan. 14, 2019).
2 Draft Guidelines, Sectfon I.
City of Dubuque City Council
January 14, 2019
Page 2
1. Restrictions On The Sitinq Of Small Wireless Facilities. Numerous provisions in the Draft
Guidelines wrongly suggest that the City is authorized to control a wireless service provider's choice
of locations for its smail wireless facifities These provisions inciude, but are not limited to, Section V
titled "Consideration of Alternate Locations," a Section VI provision titled °�ocation of Equipment-
General," a Section fX provision that only permits consideration of new wireless support structures if
existing utility poles are not available for collocation, provisions that require small wireless facilities to
be installed at least eight (8) feet above ground level, and provisions that only permit installation on
signage poles that are taller than fifteen (15} feet. State law unambiguously provides that, with limited
exceptions, the City"shall not prohibit or restrict the sitrng of a smaU wireless facility."3 The term
°siting" refers to"the mounting, installation, maintenance, modification, operation, or replacement of a
smail wireless facilitY on or adjacent to" existing or new utility poles (a broadly defined term in the
lowa Cell Siting Act }, wirefess support structures, or other existing structures.s In addition, State law
provides that the City shall not"(e)valuate an application based on the availability of other potential
locations for the placement or construction of a tower or transmission equipment"6 or"regulate the
installation, location, or use of transmission equipment on a utility pole." Further, State law only
allows the City to deny applications for small wireless facilities under limited circumstances that do
not include the City's preference for another location.s AT&T requests that the City delete ail
provisions in its Draft Gufdelines that are either inconsistent with or in direct conflict with State law.
2. Minimum Spacinq Requirements. AT&T objects to the minimum spacing requirements in the Draft
Guidelines, i.e., the "Collocation Preference" provision in Section IV and the"New Wireless Support
Structures: Spacing" provision in Section VI. The FCG cautions that minimum spacing requirements
are unlawful unfess they are (1) reasonable, (2) no more burdensome than those applied to other
types of infrastructure deployments, and (3} objective and published in advance.9 Minimum spacing
requirements that. "in effect, prevent a provider from replacing its preexistin�facilities or collocating
new equipment on a structure already in use" are almost certainly unlawful. Further. placing limits
on a wireless service provider's ability to densify its wireless network may materially inhibit the
provision of wireless services and thereby constitute an unlawful effective prohibition."
3. Underqrounding Requirement. AT&T abjects to the provision titled "Undergrounded Equipment
Vaults° in Section Vf of the Draft Guidelines, which states that"[eJquipment in an environmentally
controlled undergrou�d vault may be required in some areas where technoiogically feasible and
appropriate for the IocaEion." To comply with federal law, undergrounding requirements must be"(1)
reasonable, (2) no more burdensome than those applied ta other types of infrastructure deployments,
and (3) objective and published in advance."t2 To be reasonable, such requirements must be
technically feasible.'J A limitation on above ground wireless facilities may not be technically feasible
3 lowa Code Sec. 8C.7A(1}(a) (emphasis added).
4 lowa Code Sec. 8C.2(14) ("Utility pole" means a pole or similar structure owned or utilized in whole or in
part by a public utility, municipality, wireless service provider, or electric utility that is designed specifically
for and used to carry lines, cable, tra�smission equipment, or wires for telephone, wireless service, cable
television. or electricity service, or for lighting, the vertical portion of support structures for traffic control
signals or devices, signage, information kiosks, or o#her similar functions.").
5 lowa Cade Sec. 8C.7A(1)(b).
6 lowa Gode Sec. 8C.3(2)(a).
' lowa Code Sec 8C.7.
B lowa Code Sec. 8C.7A(3)(c)(3).
9 Infrastructure Order at¶86-87.
t0/d. at¶91.
" Id. at¶ 37.
1z Id. at¶¶86, 90.
t3 Id. at¶87.
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City of Oubuque City Council
January 14, 2019
Page 3
or reasonable, particularly in light of the FCCs finding that"a requirement that all wireless facilities be
deployed underground would amount to an effective prohibition given the propagation characteristfcs
of wireless signals."t4 Wireless facilities cannot operate with all of their equipment underground. For
exampie, radio units must be placed above ground in order ta be near enough to the antennas to
function properly. The objected-to provision also may effectively prohibit wireless services in violation
of the Telecommunications Act of 1996. It shouid be modified to be consistent with federal law or
deleted.
4. Overali Heiqht Limitations.AT&T objects to the overali height limitations in the Draft Guidelines to
the extent that they conflict with State or federal law For example, the"Height Above Ground"
provision in Section VI limits the height of wireless support structures or utility poles to thirty (30) feet
in certain circumstances, but State law permits those structures to reach up to fort� (40) feet above
ground level15 and federal law permits them to reach up to fifty (50)feet in height.' These provisions
of the Draft Guidelines should be modified to be consistent with State and federal law.
5. Antenna Heiqht Limitations. The"Height Above Ground" provision in Section VI af the Draft
Guidelines further provides that"the antenna and any associated shraud or conceaiment material ...
shall not increase the height of the existing wireless support structure by more than five (5) feet_"This
restriction conflicts with 47 CFR 1.6002(I)(1); which allows small wireless facilities to be mounted
either"on structures 50 feet or less in height including their antennas" or"on structures no more than
10 percent taller than other adjacent structures," or to be installed if they "do not extend existing
structures on which they are located to a height of more than 50 feet or by more than 10 percent,
whichever is greater." AT&T requests that this provision of the Draft Gufdelines be revised to be
consistent wfth federal law.
6. Aesthetics and Feasibility: Federal Law. The Draft Guidelines contain many design requirements
and limitations for smali wireless facilities. As just one example, Section VIII requires each applicant
to submit a proposal to camouflage any new wireless support structure and, further, to provide
landscaping of sufficient quantity and size"such that 100% screening is achieved within two years of
instailation."The FCC concluded that aesthetic requirements are not preempted under federal law if
they are(1) reasonable, (2) no more burdensome than those applied to other types of infrastructure
deployments, and (3) objective and published in advance."The FCC exp(ained that aesthetic
requirements are reasonable if"they are technically feasible and reasonably directed to avoiding or
remedying the fntangible public harm of unsightiy or out-of-character depioyments."t8 The FCC also
noted that"aesthetic requirements that are more burdensome than those the state or locality applies
to similar infrastructure deployments are not permissibie, because such discriminatory application
evidences that the requirements are not, in fact, reasonable and directed at remedying the impact of
the wireless infrastructure depioyment."'�Thus, AT&T asks that the City verify that each of the
proposed design requirements and limitations set forth in the Draft Guid�lines satisfies each of these
standards, namely, that each requirement or limitation is technically feasible, reasonably directed to
preventing unsightly or out-of-character deployments, and no more burdensome than those applied to
other types of infrastructure deployments in rights-of-way.
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td fd. at¶90.
t5 lowa Code Sec. 8G.7C(1).
16 47 C.F.R 1.6002(I}.
'� (nfrastructure Order at�86.
18 Id. at�87.
19 Id.
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City of Dubuque City Councii
January 14, 2019
Page 4
7. Aesthetics and Feasibility: State Law. State law permits the City to °[rjequire that a small wireless
facility reasonably match the aesthetics of an existing utility pole or wireless support structure that
rncorporafes decorative e/ements."20 AT&T objects to the Draft Guidelines to the extent that they
exceed the City's authorfty to impose aesthetic requirements under State law. See, e.g_, Section VI:
Guidelines on Placement(requiring small cell facilities and wireless support structures to"match the
materials and finish of the adjacent utility poies"without regard to reasonableness or the existence of
decorative elements).
8. Requirement To Pav For Public Improvements. A provision in Section VI of the Draft Guidelines
titled `Lighting, Planters, Flags, Banners" allows the City to"'require the applicant to install functional
streetlights and/or brackets to hold hanging flower planters, flags and/or banners when technically
feasible and the City determines that such additions will enhance the overall appearance and
usefulness of the proposed facility."AT&T objects to any provision that may require it to make and
pay for public improvements that solely benefit the City and the publfc, and therefore should be paid
for by the City. Because this requirement is neither reasonable nor equally burdensome for other
types of infrastructure deployments, it is not permitted by federal 1aw21 and should be deleted.
9. Other Permits and Approvals. The Draft Guidelines require certain additional permits or approvals
as conditio�s of completeness of an application. For example, a provision in Section VI of the Draft
Guidelines titled "City-Owned Wireless Support Structures° requires applicants to submit an industry
standard pole load analysis that is completed, sealed and signed by a Professional Engineer ficensed
and registered by the State of lowa. Under the Infrastructure Order, multiple authorizations and
permits rnay be required as part of a small wireless facility installation. However, AT&T highlights to
the City that a!I associated permits, approvals and conditions of completeness are subject to, and will
not delay the start of,ZZ the applicable shot clocks under State Iaw.23
1 Q. Definitions Inconsistent With State Law. The definitions of several terms in Section 2 of the Draft
Guidelines—namely, cotJocation, small wireless facrlrty, utility pole and wireless support structure—
are substantively different from the definitions of these terms in the lowa Cell Siting Act.2d Canflicting
definitions may cause confusion when determining each party's rights and obligations under State
and local law. For example, although State and local law both impose a limitation of twenty-eight(28}
cubic feet for all wireless equipment associated with a small cell facil(ty exclusive of the antenna,
State law exempts more types of equipment from the volume calculation than do the Draft
Guidelines.ZS Because AT&T is nat aware of any reason for the City to define these terms differently
than State law, it requests that the definitions in the Draft Guidelines be modified to be consistent with
State law.
11 Other Conflicts With State Or Federal Law. AT&T objects to each and every provision of the Draft
Guidelines to the extent that it conflicts with State or federal law.
20 lowa Code Sec. 8C.7(A)(b}(3) (emphasis addedj.
2t lnfrastructure Order at¶¶86-87.
22 (d. at¶ 145 ("We also find that mandatory pre-application procedures and requirements do not toll the
shot clocks... [I]f an applicant proffers an application, but a state or locality refuses to accept it until a pre-
application revfew has been completed, the shot clock begins to run when the application is proffered In
other words, the request is"duly filed" at that time, notwithstanding the locality`s refusal to accept it.")
�quoting 47 U.S.C. Sec. 332(c)(7)(B)(ii}}.
' E.g.. lowa Code Sec. 8C 5 Cf. 47 C.F.R. 1.6003.
24 lowa Code Sec. 8C.2(5), (10A), (14) & (15).
zs Compare lowa Code Sec. 8C2(10A)(2)(b)) with Draft Guidelines Sec. II.
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Conclusion
By submitting th2se initial comments, AT&T does not waive any of its legal rights under federal or
State law. Rather, AT&T submits these comments to assist the Gity with its Proposed Ordinance and
Draft Guidelines. Given the seriousness and complexity of these issues, AT&T respectfully asks that the
City not vote on this Agenda item tonight and instead allow time to coilaborate on the issues ide�tified
above.
Very truly yours,
Garoline H. Gentry ��
cc: Crenna M. Brumwell, City Attorney
(cbrumwel@cityofdubuque.org)
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