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CITY OF SARATOGA
Memorandum
To: Mayor Bernald & Members of the Saratoga City Council
From: Debbie Bretschneider, Interim City Clerk
Date: September 5, 2018
Subject: Item 2.1 APCC18-0002 Appeal of a cell facility approval along Pierce Road near the
Vista Regina intersection (Written Communications)
After publication of the agenda packet for the September 5, 2018 City Council Meeting, the
attached written communications was received for Item 2.1 APCC18-0002 Appeal of a cell facility
approval along Pierce Road near the Vista Regina intersection
JOHN DI BENE
General Attorney
Legal Department
AT&T Services, Inc.
2600 Camino Ramon
Room 2W901
San Ramon, CA 94583
925.543.1548 Phone
925.867.3869 Fax
jdb@att.com
August 31, 2018
Via Email (saratoga_cc@saratoga.ca.us)
Saratoga City Council
City Hall
13777 Fruitvale Avenue
Saratoga, CA 95070
Re. AT&T Proposed Small Cell Wireless Facility; Site ID WSAR0_003
Application PDR18-0011; Pierce Road right-of-way near Via Regina.
Dear Mayor Bernald, Vice Mayor Cappello, and Councilmembers Kumar, Lo and Miller:
I write on behalf of New Cingular Wireless PCS, LLC dba AT&T Mobility (AT&T), to
respectfully request that the City Council uphold the Planning Commission’s approval of
AT&T’s application to install a concealed small cell wireless telecommunications facility on an
existing utility pole in the public right-of-way along Pierce Road (“Small Cell Node 3”). This
project, which will help deliver vital wireless services to residents, was supported by Planning
Staff at every step along the application process. On July 11, 2018, the Planning Commission
unanimously approved this project. Planning Staff continues to back this application, but one
resident has appealed its approval. AT&T’s proposed plans for this low-profile, low-power
wireless facility presents a win-win for the City by enabling vital wireless service for residents
without disturbing the area aesthetics. Thus, we urge the Council to deny the appeal and approve
AT&T’s application.
AT&T’s Proposed Small Cell Facilities
AT&T is deploying a set of thirteen small cell facilities in carefully selected locations
where they are needed to address wireless service issues in the City. Unlike traditional macro
facilities, these small facilities improve service quality for the City’s residents with streamlined
facilities that will be installed with minimal impact to the City.
AT&T’s proposed small cell equipment consists of a set of small, enclosed boxes
matching the diameter of the pole and painted to match the pole. AT&T’s equipment does not
stand out; in fact, they look like small utility boxes on a typical utility pole. Using pole-top
antennas also helps the overall aesthetic by maintaining the existing pole line. AT&T has taken
care to select locations to reduce visibility. As you can see in the photosimulations for Small Cell
Node 3 (Attachment A), this facility will be placed on a utility pole with adjacent trees that will
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August 31, 2018
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help reduce visibility of the facility. The height of nearby trees will help conceal the equipment
while still allowing the antennas a clear line-of-site for signals.
As summarized in the July 11, 2018 Staff Report to the Planning Commission, Small Cell
Node 3 meets all of the City’s design review criteria under Saratoga Municipal Code Section 15-
44.025. In addition to reviewing AT&T’s application at its July 11th public hearing, the Planning
Commission toured the proposed small cell sites on July 10th so that they could view the actual
existing conditions of the proposed sites. The Planning Commission agreed that Small Cell Node
3 meets the City’s standards and unanimously approved the application.
The City Council can easily make specific findings that AT&T’s Small Cell Node 3 will
meet the design review criteria. Specifically, as staff concluded, this small cell will (a) be located
on an existing utility pole in the public right-of-way;1 (b) meet screening and stealthing
requirements by orienting equipment on existing utility poles to face away from the public,
painting equipment to match the pole, with cabling flush to the pole to avoid visual clutter, and
placing the antenna and equipment at heights compatible with nearby trees;2 and (c) avoid use of
ground-mounted equipment.3 In addition, the pole-top antenna will be fully concealed within a
canister in line with the pole and painted to match the pole. And the visual impact of the pole-
mounted Small Cell Node 3 will be minimized even further by the natural screening of adjacent
trees and by its location at a bend in Pierce Road.
Need for Small Cells
Small cells give residents and businesses access to the latest and greatest wireless
technologies without cluttering the public rights-of-way. Small cells are critical to meet ever-
increasing demand for wireless services. Small cells are needed in residential areas, where they
can be installed in the public rights-of-way, so that customers are presented with a dominant
signal that results in less noise interference and provides faster throughput.
This is especially important in today’s world where so many people rely on wireless
services to do more in their homes. The Center for Disease Control and Prevention (“CDC”)
tracks the rates at which American households are shifting from landlines to wireless
telecommunications. According to the CDC’s latest Wireless Substitution Report, more than 70
percent of Americans rely exclusively or primarily on wireless communications in their homes.4
In addition, the FCC estimates that 70 percent of all 911 calls are made from wireless devices.5
And with AT&T’s selection by FirstNet as the wireless service provider to build and manage the
nationwide first responder wireless network, each new or modified facility will help strengthen
first responder communications.
1 See Saratoga Municipal Code § 15-44.025(a).
2 See Saratoga Municipal Code § 15-44.025(b).
3 See Saratoga Municipal Code § 15-44.025(c).
4 See Wireless Substitution: Early Release of Estimates From the National Health Interview Survey, July-December
2017, available at http://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless201806.pdf.
5 See 911 Wireless Services, available at https://www.fcc.gov/consumers/guides/911-wireless-services.
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August 31, 2018
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AT&T’s existing macro facilities that serve the area are under duress due to high and
increasing mobile data traffic on AT&T’s network. The resulting capacity restraints reduce
mobile data speeds to the point where AT&T cannot meet its service objectives in the area.6 By
placing small cells in these poor signal quality areas, they will capture a significant amount of
traffic now served by the overloaded macro sectors. Once on air, proposed Small Cell Node 3
will help offload network traffic from those macro sectors, which will improve signal quality and
data speeds, allowing customers served by that sector to receive reliable service.
AT&T’s Search for Alternative Sites
In order to be certain that AT&T is proposing the best available and least intrusive means
to address its significant service coverage gap in these portions of the City, AT&T evaluated
many different locations in the area. AT&T’s alternative sites analysis for Small Cell Node 3,
which provided to the City in connection with this appeal. AT&T selected the proposed location
based on its availability – that is, AT&T’s ability to gain attachment rights – and feasibility in
terms of both constructability and viability from a radio frequency perspective.
Specifically, AT&T considered the City’s design review criteria and compared potentially
available alternatives for Small Cell Node 3. In all, AT&T has analyzed seven sites for Small Cell
Node 3. Four of these alternatives were not feasible for construction because AT&T’s equipment on
these poles could not meet state regulatory standards (CPUC GO95) due to lack of climbing space or
existing electric service equipment on the pole that prevents AT&T’s attachment. Two other sites
would have been more intrusive. One of these would have required a ground-mounted meter, which
is less favored under the City Code and would add clutter to the area. The other more intrusive
alternative would not have been as well screened as the proposed location due to somewhat less
vegetation adjacent to the pole. Thus, AT&T identified the least intrusive potential and feasible site
for Small Cell Node 3.
AT&T’s Proposals Are Consistent with State Law
AT&T has a statewide franchise right to access and construct telecommunications
facilities in the public rights-of-way. And AT&T’s small cell applications seek to place these
facilities consistent with state policy and law. Consistent with the California Constitution, the
placement of telecommunications infrastructure in public rights-of-way is a matter of statewide
concern.7 Under California Public Utilities Code Section 7901, AT&T has the right to access and
construct facilities in public rights-of-way in order to furnish wireless telecommunications
services, so long as it does not “incommode” the public use of the public right-of-way. And
6 See radio frequency propagation maps submitted with Application.
7 See, e.g., Pac. Tel & Tel. Co. v City & County of San Francisco, 51 Cal. 2d 766, 768 (1959) (“the construction and
maintenance of telephone lines in the streets and other public places within the city is today a matter of state concern
and not a municipal affair”); see also, Cal. Const., Art. XII, § 8 (“[a] city, county, or other public body may not
regulate matters over which the Legislature grants regulatory power to the [Public Utilities] Commission”).
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August 31, 2018
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under Section 7901.1, AT&T’s right is subject only to the City’s reasonable and equivalent time,
place, and manner regulations as to how AT&T constructs in the public rights-of-way.
Small Cell Node 3 will not incommode the right-of-way. In addition, AT&T’s application
proposes to place facilities in accordance with the City Code and with careful consideration
given to the City’s preferences and design review criteria. This small cell is designed to
minimize visual impact and are carefully sited to fit within its surroundings. AT&T’s Small Cell
Node 3, and the other proposed small cells in this portion of the City, will be amenities to the
community, improving critical wireless services in the City.
Approval of AT&T’s Proposal is Required Under Federal Law
The federal Telecommunications Act of 1996, 47 U.S.C. § 332 (“Act”) provides rights to
wireless service providers and establishes limitations upon state and local zoning authorities with
respect to applications for permits to construct personal wireless service facilities. The United
States Supreme Court has explained that the Act was enacted in part to prioritize and streamline
deployment of wireless technologies on a national basis.8
The Act defines the scope and parameters of the City’s overall review of AT&T’s
Application. Under the Act, the City’s review must consider the application based on substantial
evidence.9 It is important to note that evidence about radio frequency emissions is not substantial
evidence that the City can rely upon to grant the appeal. As noted by the Planning Commissioners
during the public hearing, local governments are specifically precluded from considering any
alleged effects of radio frequency emissions in making decisions as to the siting of wireless
telecommunications facilities “to the extent such facilities comply with the FCC’s regulations
concerning such emissions.”10
Here, it is beyond dispute that the proposed equipment will operate well below applicable
FCC limits. For proposed Small Cell Node 3, an RF engineering analysis was performed by
Hammett & Edison, Inc., Consulting Engineers.11 The report confirms that Small Cell Node 3 will
operate well within (and actually far below) all applicable FCC public and occupational exposure
limits. In addition, William Hammett spoke during the Planning Commission hearing, confirming
that the small cells will comply with FCC standards and answered the Commission’s specific
8 City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 115-16 (2005) (“Congress enacted the Telecommunications
Act of 1996 (TCA), 110 Stat. 56, to promote competition and higher quality in American telecommunications
services and to ‘encourage the rapid deployment of new telecommunications technologies.’ Ibid. One of the means
by which it sought to accomplish these goals was reduction of the impediments imposed by local governments upon
the installation of facilities for wireless communications, such as antenna towers.”)
9 47 U.S.C. § 332(c)(7)(B)(iii)
10 See 47 U.S.C. §332(c)(7)(B)(iv).
11 See Statement of Hammett & Edison, Inc., Consulting Engineers (April 4, 2018), submitted with AT&T’s
Application.
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August 31, 2018
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questions. Given the compliance with the FCC standards, the Applications cannot be rejected based
on concerns about radio frequency emissions.
The Act also prohibits a local government from denying an application for a wireless
telecommunications facility where doing so would “prohibit or have the effect of prohibiting the
provision of personal wireless services.”12 Courts have found an “effective prohibition” exists
where a wireless carrier demonstrates (1) a significant gap in wireless service coverage, and (2) that
the proposed facility would provide the “least intrusive means,” in relation to the land use values
embodied in local regulations, to provide the service coverage necessary to fill that gap.13 If a
wireless carrier satisfies both of these requirements, state and local standards that would otherwise be
sufficient to permit denial of the facility are preempted and the municipality must approve the
wireless facility.14 When a wireless provider presents evidence of a significant gap and the absence of
a less intrusive alternative, the burden shifts to the local government to prove that a less intrusive
alternative exists. In order to meet this burden (and overcome the presumption in favor of federal
preemption), the local government must show that another alternative is available that fills the
significant gap in coverage, that it is technologically feasible, and that it is “less intrusive” than the
proposed facility.15
Here, AT&T has demonstrated its significant service coverage gap. AT&T’s radio
frequency propagation maps submitted with its application depict the problem that AT&T is
experiencing in this portion of Saratoga. These maps show that AT&T’s wireless service in this
portion of the City suffers from poor data rates, meaning customers are experiencing poor signal
quality in large portions of the City in the vicinity of Small Cell Node 3 and the other proposed
small cells. Specifically, this gap area is significant because it encompasses dozens of homes in
residential neighborhoods along Pierce Road and Big Basin Way which are difficult to cover
with traditional macro facilities. By placing the proposed small cells in locations where specific
and measurable signal quality issues are occurring, AT&T can offload traffic from congested
macros in order to alleviate these capacity triggers and ensure adequate signal quality in the
larger area served by the affected macros.
AT&T has worked hard to identify the right solution to its service needs. Taking into
consideration the City’s design review criteria, AT&T conducted a meaningful comparison of
alternatives for Small Cell Node 3 and identified what it determined to be the best available and least
intrusive means for each.16 Specifically, AT&T has analyzed seven sites for Small Cell Node 3 and
concluded that the other six candidate sites were not feasible because they failed to meet state
12 47 U.S.C. §332(c)(7)(B)(i)(II).
13 See e.g., Metro PCS, Inc. v. City and County of San Francisco, 400 F3d 715, 734-35 (9th Cir. 2005), abrogated on
other grounds, T-Mobile South, LLC v. City of Roswell, 135 S.Ct. 808 (2015); Sprint PCS Assets, LLC v. City of Palos
Verdes Estates, 583 F.3d 716, 726 (9th Cir. 2009).
14 See T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 999 (9th Cir. 2009).
15 Id., 572 F.3d at 998-999.
16 See Alternative Sites Analysis submitted to the City on August 20, 2018 in connection with AT&T’s appeal
response.
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August 31, 2018
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regulatory standards (CPUC GO95) or were more intrusive than the proposed small cell. Thus,
AT&T identified the least intrusive potential and feasible site for Small Cell Node 3.
Issues Raised By Appellant
The appellants’ grounds for appeal lack merit as explained below and should be rejected.
Whether or not the Council finds a code-based reason to disfavor proposed Small Cell Node 3,
the Council is preempted by the Act from taking action that would prohibit or have the effect of
prohibiting AT&T from providing personal wireless services, and the City cannot unreasonably
burden AT&T’s right to use the public rights-of-way.
During the Planning Commission hearing about AT&T’s proposed small cells, one of the
appellants spoke to provide comments on proposed Small Cell Node 3. At that time, he
explained that his primary concern was about the health effects of radio frequency emissions
from the proposed facility. He specifically stressed his concern about radiation exposure to his
young children. Again, under federal law the City cannot consider evidence about the effects of
radio frequency emissions because Small Cell Node 3 will comply with the FCC’s applicable
standards. Moreover, appellants’ speculative concerns are contradicted by the substantial
evidence that demonstrates compliance with the FCC’s standards.
The appellants also speculate that the addition of the stealth, pole-top antenna might affect
their property value. During the Planning Commission hearing, the appellant speculated about
possible impacts to property values and he asserted that the subject utility pole is situated on a
utility easement of his property. But Staff confirmed that the utility pole to which Small Cell
Node 3 will be attached is in the public right-of-way. Appellants also complain that their
“property suffers by being saddled already with several large and obtrusive utility boxes.” While
there do seem to be some existing ground-mounted utility boxes near this utility pole, Small Cell
Node 3 will not add any ground-mounted equipment. Further, appellants acknowledge that they
can already see the utility pole from their home. There is no indication of why the appellant is
concerned that a stealth utility installation on an existing utility pole would adversely impact their
property value. In any event, there is no evidence in the record (such as a market appraisal report or
expert testimony) to support the appellants’ concerns about property values. In fact, home buyers
commonly seek out properties with amenities such as high-quality wireless connectivity.
The Council must make its decision based on substantial evidence, not based on
unsupported conjecture and fear. The Application cannot be rejected due to health concerns
whether raised explicitly or indirectly through some proxy such as property values. Citing
Congressional intent upon passage of the Act, a federal district court in California has held that in
light of the federal preemption of radio frequency emissions, “concern over the decrease in
property values may not be considered as substantial evidence if the fear of property value
depreciation is based on concern over the health effects caused by radio frequency emissions.”17
Thus, appellants’ complaints cannot be a proxy for preempted concerns about radio frequency
17 AT&T Wireless Services of California LLC v. City of Carlsbad, 308 F.Supp.2d 1148, 1159 (S.D. Cal. 2003)
(quoting H.R. Conference Report No. 104-458, 201 (1996)).
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August 31, 2018
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emissions. By law, to the extent that the appeal is based on concerns over radio frequency
emissions, the Council cannot consider them.
The appellants also worry that children might come into contact with AT&T’s equipment by
climbing nearby trees. But AT&T’s equipment will be placed on an existing utility pole that already
houses utility equipment. For example, you can see in the photosimulations (Attachment A) that
existing conduits run the length of the pole. In addition, the proposed small cell equipment will be
located a minimum of seven feet high on the pole and no ground-mounted equipment is proposed.
Appellants point out that other approved small cells “are either off to the side of the
homeowner’s property or across the street.” That is the same case here. The appellants reside on
Mount Eden Road, and Small Cell Node 3 will be placed along Pierce Road which runs along the
side of appellant’s property. And again, AT&T compared several alternative sites and identified this
one as the best available and least intrusive means to address AT&T’s service coverage gap. No
alternative site for Small Cell Node 3 has been proposed by the appellants or the City. Indeed,
Planning Staff supports this location and the Planning Commission, who personally viewed this
location, unanimously approved this site and the proposed design.
Conclusion
AT&T is diligently seeking to upgrade its network with cutting-edge technology to
provide adequate quality wireless service to this part of Saratoga. The Planning staff and the
Planning Commission both correctly found that AT&T’s design and proposed solution meets the
City’s standards. AT&T has shown that both federal and state law strongly support (indeed,
mandate) approval, and there has been no substantial evidence proffered on which the Council
could grant this appeal. I urge the City Council to deny the appeal and uphold the Planning
Commission’s approval of AT&T’s Application.
Very truly yours,
/s/ John di Bene
John di Bene
Attachment : Photosimulations
13988 Pierce Road, Saratoga, CA
CRAN_RSFR_WSAR0_003
02.15.2018
Your Project. Visualized.
www.photosims.com
Photo simulation as seen looking north along Pierce Road
proposed AT&T antenna
proposed AT&T pole
mounted equipment
13988 Pierce Road, Saratoga, CA
CRAN_RSFR_WSAR0_003
02.15.2018
Your Project. Visualized.
www.photosims.com
Photo simulation as seen looking southwest along Pierce Road
proposed AT&T antenna
proposed AT&T pole
mounted equipment