What to expect when a wireless facility is proposed on a utility pole in your neighborhood
I supervise the Office of Cable Communications and Franchise Management (a.k.a. "Cable"), which regulates use of the public right-of-way for private purposes such as commercial utilities, and manages fees for public facilities such as water and sewer pipes. Because the City is reviewing many new applications for wireless facilities in the streets (a.k.a. cell towers and antenna placement on utility poles), my staff and I prepared the following information to help you know your rights and opportunities for affecting the placement of these facilities.
Wireless services are continuing to grow at exponential rates, and cell phones have become the equivalent of a basic, lifeline utility service to thousands of Portland residents. Currently there are about twice as many wireless subscribers as there are Qwest 'wireline' phone customers in Portland. Over 60% of all calls to 9-1-1 in Portland come from cell phones.
As cell phone use and other wireless technologies continue to grow exponentially, wireless carriers will want/need to place more and more antennas in residential neighborhoods. This is because wireless technology is a "line of sight" service, and each company's equipment needs to connect with other facilities in their network. Existing facilities are reaching or exceeding capacity, and new companies want to provide service in Portland. Consumers want good connections and competitive pricing. This requires additional antennas.
The federal government does not allow local jurisdictions to “prohibit or effectively prohibit” the ability of any entity to provide telecommunications service (FCC 253a). This means the City has limited ability to restrict the placement of cellular facilities. The City's job is to balance the growth desired by providers and consumers with the sensitive nature and livability of our neighborhoods, under the applicable laws.
Information on why the City cannot consider potential health impacts is here. If you want to help advocate for reconsideration of this federal policy, see here. The 2009 Portland City Council Resolution asking the FCC to re-evaluate potential health impacts is here. Please copy Cary Turkon on my staff if you email your congressional Representative/Senators, so my office can monitor how many Portlanders are lobbying our legislators in D.C.
The City undertook several public processes to develop the current Zoning Code and contracts with the wireless carriers. A history of public involvement and adoption of regulations and contracts is here. After a highly-publicized, contentious public hearing at Council on proposed new regulations in the right-of-way in the fall of 2008, the proposal at that time was tabled, and my staff and I initiated a fresh look when I took office and was assigned to Cable in January 2009. We looked at multiple options, with the City Attorney's office, city staff in Cable and in Development Services, citizens who had been active with concerns in the 2008 proposal and others who became involved over the course of several months, and industry representatives.
The goal of the 2009 process was to ensure that new wireless antenna sites will be placed in residential areas only as a last resort. If they need to be in residential areas, their impact must be minimized. The result of this public input is a system adopted by ordinance after an evening Public Hearing before Council in May 2009. It requires wireless carriers to follow a hierarchy for placement of facilities. It allows taller structures so there can be fewer facilities, rather than shorter structures that require more poles to reach the "line of sight" coverage connections.
If there is an existing building or structure, such as a business, church, school, existing cell tower, or water tank where the new antennas can be placed, that option is preferred. Approval may require a Land Use review using Zoning Code regulations and approval criteria.
If an existing building or structure is not available, facilities must be placed on existing utility poles, based on a four-tier street ranking, from busy arterials to quiet neighborhood streets. The street rankings are here. The facility must be placed on a pole on the largest street possible, based on the coverage need of the carrier. The process for this option is described below.
If the above choices are impossible, then the carrier can apply to build a cell tower.
This policy has been effective. No new cell towers have been built in residential areas since about 2004, and of the 80 sites with an antenna on a utility pole, only about 20 have been placed on poles on small neighborhood streets in residential areas.
Specific Requirements and Opportunities for Input when an Antenna is Proposed on a Utility Pole in a Residential Area
Because the Zoning Code does not apply to the right-of-way, approvals or denials to work in the streets are administrative permits rather than land use cases. Citizen influence in individual siting decisions in the streets is different from citizen influence in land use cases. There are no discretionary decisions, only review of whether or not standards are met. Nevertheless, during the public process in the spring of 2009, participating community members clearly stated that they wanted both notice and meetings, even if these aren't land use cases and even if they don’t have the same voice in these permits as they do for land use cases. The City's current requirements reflect this request.
1. The wireless carrier is required to schedule a meeting in conjunction with the neighborhood association, business association, and neighborhood coalition. Carriers typically arrange to be on the agenda at the next regularly scheduled neighborhood or business association meeting.
2. The carrier is required to notify property owners and residents within 400 feet of the utility pole of the meeting. The notice must describe the proposal and provide names and contact information for the wireless carrier, the pole owner, and the City.
The Notice will have contact information about the pole owner. Most but not all poles are owned by PGE and Pacific Power & Light. Qwest owns about 40,000 in Portland, sprinkled throughout the PGE and PPL service territories. Verizon owns an estimated 1,000-2,000 in outer NE Portland, and the City owns roughly 8,000-10,000 throughout the city. It's the wireless company's responsibility to figure out who the pole owner is and provide the correct contact information for the pole owners on their Meeting Notices.
3. The notice must be sent 14 - 30 days before the meeting date.
4. At the meeting, the carrier is required to inform neighbors of its plans and provide a photograph of the pole and a photo simulation of how it will appear after the equipment is attached. Neighbors are encouraged to attend, ask questions, and offer any suggestions about the proposal. If the neighbors believe that a less intrusive option should have been proposed, or that the aesthetic standards/limitations in the carrier's contract with the City are not being followed (Section 6 of http://www.portlandonline.com/cable/index.cfm?c=46289&a=242692), they can discuss this at the meeting. If they are not satisfied, they can inform the City, and the City can discuss this with the carrier both before and after an application is received. Questions regarding an application should be directed to
Jennifer Li in the Cable Office and Tim Crail in my office.
5. If the carrier chooses to proceed, it submits an application to the City that includes how it responded to the public input. The carrier’s application form with this and other requirements is on the web at http://www.portlandonline.com/cable/index.cfm?c=46289&a=245404.
6. The City reviews the application against the contractual requirements. Applications will not be approved if they are incomplete or do not comply with the contractual requirements.
If the contractual requirements are met, the application is approved by Cable and forwarded to the Bureau of Transportation whose staff can issue permits for the work.
Unlike land use review cases, there is no specific timeline for the City's review of applications. This allows flexibility to manage the volume, address citizen concerns, and clarify issues with the applicant before action is taken. After Cable performs their office's review, their recommendation is forwarded for approval/denial to the Portland Bureau of Transportation (PBOT), whose staff then performs their technical review and issues or denies the permit. PBOT will not issue a permit untll both Cable and Transportation staff approve the application. Applicants may start work the day PBOT issues the permit, or they may wait and start several months later. There is no further notification to neighbors after the Cable office review is complete.
In about 1/2 the cases the antennas are attached to the existing pole. In the other 1/2 of the cases the utility pole is replaced with a slightly taller one (at most another 15' on small residential streets) and the antennas are attached against the pole. Antenna parts are not allowed to stick out like those on a traditional cell tower. This permitting step can take a few weeks.
7. After the facility is placed, the Bureau of Transportation conducts a field inspection to ensure the facility was constructed as proposed.
8. If the facility does not operate in accordance with standards, or stops operating correctly -- for instance if noise and vibration levels are excessive, the Office of Cable Communications and Franchise Management, the Bureau of Development Services, and if necessary Commissioner Fritz's office, require the facility owner to correct the problem(s).
In the past, some owner(s) have not responded quickly to complaints. This problem is being addressed (see below).
What else the City is doing on this important issue
Our team at the Office of Cable Communications and Franchise Management is working diligently to press for responsible regulation of cellular facilities. For example:
* We filed an amicus brief in helping to overturn the 9th Circuit's prior decision in Qwest vs Auburn. The Ninth Circuit Court of Appeals held that telecom companies can only sue cities & counties for actual or effective prohibitions of service, not speculative or theoretical ones.
* Our Government Relations lobbying team continues to work with our federal delegation in requesting re-evaluation of potential health impacts - you can help by contacting your legislators -- see here.
* We are pursuing new strategies to address the hundreds of upcoming applications for more cellular facilities
* We communicate regularly with Bureau of Development Services staff reviewing applications for cellular facilities on private lots (remember, the Cable office works only on facilities in the right-of-way - development on lots is regulated by the Zoning Code)
* We worked to provide more funding for BDS inspectors through the budget process, and will also pursue other ways to support the one Noise Officer in BDS including possibly proposing noise/nuisance regulations specific to cellular equipment.
I recognize many Portlanders are concerned about the siting of cellular facilities. After a sufficient number of applications have been reviewed and approved/denied, my office will work with Cable staff and citizens to assess whether changes to the current regulations are needed.
The intent of the neighborhood meeting is for the applicant or the applicant's representative to share information about the proposal, and for the neighbors to seek clarification and give suggestions on what is or might be proposed. For example, some neighbors have stated a preference to bury the equipment box associated with the antenna, others prefer it to be mounted on the pole. Questions should be answered regarding why the proposed location was chosen over other nearby locations. Suggestions may be made requesting the company to study the feasibility of siting the antenna on a different, nearby pole. The intent is to have a dialogue, i.e., for neighbors to get questions answered, and for the applicant to hear suggestions for improvement in their proposal. If questions are asked and the answer is unknown, the applicant's representative should seek a primary neighborhood contact person so that answers are provided and distributed after the meeting, so that citizens may then provide comments directly to City staff. It is helpful if neighbors designate a single person or group to compile neighborhood comments to submit to the applicant, City staff and to the Commissioner in Charge.****