The Next Generation of Cell Towers Has a Next Generation of Deregulation 

A 2018 FCC rule that weakened the power of cities to regulate 5G networks could end the ability of cities to even notify their residents about forthcoming installations.

click to enlarge Alexis Schroeder worries that 5G antennae must be placed too close to people.

Photo by Lance Yamamoto

Alexis Schroeder worries that 5G antennae must be placed too close to people.

The fifth generation of wireless telecommunications technology promises faster internet connections but requires a greater density of towers than previous networks. As telecom companies move to install such 5G facilities across the country, some residents of Oakland and other cities are pushing back, as they have for decades. But unlike in previous fights with the telecom industry, this time local residents face a new obstacle.

A 2018 order by the Federal Communications Commission restricts the ability of cities to regulate 5G. The order's provisions not only limit the amount of time that cities have to review new applications, but also make it difficult for cities to even notify residents about proposed installations.

For years some people have distrusted the telecommunications infrastructure in their neighborhoods, questioning the safety of wireless networks and the cell phones they make possible, and worrying that people with prolonged exposure to such frequencies are at risk of developing health issues. But just because they had health concerns didn't mean they could do anything about it. The 1996 Telecommunications Act, whose main purpose was to create more competition in the telecommunication industry, also banned cities and residents from arguing against the placement of telecom facilities based on health concerns.

But the act did not ban communities from blocking wireless facilities for aesthetic reasons. As a result, people who opposed such structures have been relegated to fighting them on the basis of their appearance, or pushing cities to write or update ordinances that specify where such facilities can be installed. And some have succeeded.

In 2017, Piedmont blocked the installation of some 5G facilities, but late last year it reversed course to help settle a lawsuit filed against it by Crown Castle, the company installing the towers for the cellular carrier Verizon. Last year, Petaluma's city council voted to enact an ordinance to keep new facilities at least 500 feet from homes and 1,500 feet from other cell towers. And late last summer, a handful of cities in Marin County, including San Rafael and Mill Valley, enacted urgency ordinances to stop 5G facilities from going up in residential areas all together.

But then in September, the Federal Communications Commission — the federal agency tasked with regulating the telecommunications industry — issued an order designed to streamline the implementation of 5G facilities in cities across the country. The order instated a number of changes to how cities are allowed to respond to and process permits for the installation of 5G facilities, also referred to as "small wireless facilities."

"The smart infrastructure policies we adopt today strengthen America's role as a tech and economic leader, while ensuring that every community benefits from 5G," Commissioner Brendan Carr said on approving the order. "Today's order streamlines the approval process for 5G small cells and helps ensure that our country will continue to be the innovation hub of the world."

The order prohibited cities from creating a moratorium on the installation of 5G infrastructure. It also shortened the amount of time that cities had to review applications for facility installation. Cities now must review and approve or reject applications within 60 days for existing structures or 90 days for new structures.

At a recent meeting of the Oakland Planning Commission, several residents shared comments and concerns about the city's proposed design standards for 5G facilities. Alexis Schroeder, one of the speakers, helped form a neighborhood group in 2018 after receiving a notice about a proposed 4G installation. She later confirmed with the manufacturer that the antenna would have the capability to be switched to 5G.

"We're not against technology," Schroeder said in a phone interview. "We want safe technology, and if they can be beautiful at the same time, even better."

But city notices like the one that Schroeder received may also be at risk. Another major change in the FCC's September order prevented cities from charging applicants more than $500 for applications. At that same Planning Commission meeting, city Zoning Manager Robert Merkamp said the city has typically charged wireless carriers $9,500 to seek a wireless facility installation permit. He said the new maximum permit fee of just $500 won't even cover the costs of notifying residents of a proposed installation site.

The FCC's order is making some feel that the agency has gone too far. San Jose and other cities are suing, claiming that the commission has severely restricted how cities can manage the rollouts of this technology.

Chris Hoofnagle, a law professor and director of the UC Berkeley's Center for Law and Technology, said that while he was not familiar with the order it sounded typical of a strategy known as preemption — the power that the federal government has to override the power of local jurisdictions on issues of commerce.

"Preemption is a heavy-handed tactic, but it rears its ugly head in response to towns like Berkeley, which has a lot of NIMBYism," said Hoofnagle via email. NIMBY, an acronym for Not-In-My-Backyard, is a term often applied to groups that protest change in their neighborhoods.

The nature of 5G technology is also raising new concerns about the health effect of wireless transmissions — even though local residents are largely powerless to do anything about that issue. Whereas 4G antennas — the antennas that power much of the area's current network — can be mounted on poles many thousands of feet apart, 5G antennas have to be mounted just hundreds of feet apart. This is because they often are using millimeter waves, which have a higher frequency and larger bandwidth, but can't travel as far. The new wireless facilities are physically smaller — some people call them pizza boxes — but the ancillary equipment required to operate these antenna can be as large as a refrigerator. And there will have to be many more cell antennas with shorter distances in between to create a functional network.

Johanna Finney, who lives near Lake Merritt, worries that the need for lots of new facilities, despite their smaller size, is going to result in them getting placed where people are over-exposed, such as near schools.

Joel Moskowitz, the director of UC Berkeley's Center for Family and Community Health, shares these concerns. He is part of a group of researchers that has published more than 2,000 papers in professional journals on electromagnetic fields and health.

"Although there is no empirical research on the health effects of 5G," he said, "more than 240 scientists and physicians have called for a moratorium on the rollout of this technology."

"Most of the research has been on second and third generation wireless technology, and the preponderance of peer-reviewed studies indicates that cell phone radiation can cause reproductive harm, neurological disorders, and cancer when someone is exposed to it over a long period of time," he said. Even with 5G installation, the 4G network would still be in place as a kind of back-up network, so people will be exposed to multiple forms of radiofrequency radiation, increasing potential health risks, he said.

Aside from the health issues, Finney thinks that the FCC's role in the rollout needs to be closely examined. She thinks the agencies interests are too intertwined with telecom company interests.

"My ultimate concern comes with the 1996 Telecom Act that Clinton signed into law, and the revolving door between FCC executives and telecom executives is so blatant," she said.

Residents such as Finney and Schroeder have gathered residents for meetings and regularly attended planning commission meetings when a project comes up for public notice or review. They've tried to educate the commissioners, who are volunteers, on how they should consider these applications. Finney estimates that nearly 300 applications have been submitted for wireless facilities to the city of Oakland between 2015-2017 alone. She doesn't trust that the planning commission knows enough about the issue, and worries that it is overrun. The city is considering transitioning the processing of these permits to the transportation, planning, and real estate departments, but Finney thinks that would limit the public's ability to keep tabs on such permits. Ultimately, residents are looking to other local cities in Marin that have created ordinances to regulate wireless facility deployment, to see if they can convince the Oakland city council to follow suit.

At the June 19 commission meeting, residents asked for changes to the city's design standards for small wireless facilities, such as coming up with aesthetics guidelines on a smaller scale than than city-wide, and doing what they can to make them as inconspicuous as possible.

Residents now have until July 19 to comment on the city's draft design standards for 5G facilities.

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