Letter to the Editor: Albany Cell-Phone Issues and the City Council Election

-By David Sanger

Albany is getting a reputation, but it is not one that we want. Recently in a conversation with a wireless carrier representative I asked how Albany compared to other California cities with respect to the application process for wireless facilities. Their answer was blunt: Albany is known among carriers as the most difficult city in California for getting approval for wireless sites.

A look at our recent history makes this clear. Since Albany's restrictive wireless ordinance was passed in 2005, not one new facility serving city residents has been approved. In the last 12 months we have turned down two applications in the works for years, rejected two appeals, and have subsequently been sued twice in Federal Court for violations of the Telecommunications Act. The Verizon suit was settled out of court and Verizon now has their building permit, with a net cost to the city of nearly $30K in lawyers' fees. The AT&T suit is in process with initial arguments scheduled for December. Meanwhile neither Verizon nor AT&T customers have yet received much-needed service improvements.

The next City Council, with two or three members carrying forward and the rest newly elected, should have as the highest priority a plan to reduce this impasse and streamline our cumbersome process so that wireless facilities can be approved expeditiously.

There are several problems with Albany's wireless ordinance and approval process:

First, the process takes far too long. Outgoing Councilmember Lieber bragged at a recent meeting that four years is "not too long" in Albany; that was before voting to deny AT&T's application appeal which had been filed in 2008. In fact four years is a ridiculous amount of time. When the FCC was asked to rule on what was a "reasonable time" to act on a wireless facility application, they ruled it was 90 days for collocations and 150 days for standalone sites.

Second, the ordinance's preference for siting wireless facilities as far away as possible from the people they serve vastly reduces the number of viable sites for a carrier.

Third, the way we have discussed the issue as a community and misconceptions about the role of the City, have made it more difficult to find common ground. Thousands of Albany residents rely on mobile service (both voice and data) for daily communications and business needs, yet their voices are not well represented. There are roughly 15,000 wireless customers in Albany (nationwide penetration is over 104%). Despite this, arguments from a few opponents at Planning and Zoning have unduly emphasized purported health risks of base stations (not a municipal issue at all, but something for the FCC). The same fears led in 2004 to the rejection of a proposal to add a
cell facility to Albany High School, similar to the one that has been successfully operating for many years at Albany's other high school, St Mary's.

Albany City Council candidates have addressed the cell tower issue in public meetings, on the Patch and on their campaign websites. Their approaches differ, however, as does their understanding of the history, relevant law and technology.

Roughly the candidates fall into three groups:

The pragmatist wing comprises Tod Abbott, Michal Barnes and returning Councilmember Peggy Thomsen. All three emphasize working to find a way to be able to provide cell service to Albany residents and recognize that the current ordinance is not accomplishing that end.

Tod makes the point that " robust cell phone support has gone beyond a luxury or convenience and has become an issue of public safety and well being." Peggy reiterated that point at the Candidates' night, recalling testimony by a blind Albany resident who relied on working cellphone for his personal safety. At the last Council meeting in July, Peggy, along with Mayor Javandel, sought to find a way to allow AT&T to work with city so that their amended application fell within the specific zoning height exception, but they were outvoted 3 to 2.

Michael Barnes has been the most consistent of the candidates in working for better cell coverage. As a School Board member he opposed the initial ordinance in 2005 and predicted that it would be difficult to work with. When the Cell-Free Albany group brought up purported health risks from base stations, Michael bought an RF meter and went all over town documenting actual measured RF levels to show that they were uniformly far below the mandated thresholds.

Both Tod and Michael have spoken often at P&Z and Council meetings advocating for a common-sense approach. Tod adds the retail perspective that businesses increasingly rely on customer mobile internet access for menus maps and reviews, and even for credit card payments.

The second group of candidates, Peter Maass and Nick Pilch, share a Sierra Club endorsement, but it is Peter who has been the most closely involved in the current process as a long-term member of the Planning and Zoning Commission.

During his tenure the Commission met six times to discuss the AT&T application. P&Z could have turned down the application at the first meeting in 2008 and saved huge expense and delay. Instead P&Z ignored recommendations for approval from staff and consultants three times in a row, and each time asked for additional information or changes. Pete Maass has indeed at last acknowledged on his website that we need to "revisit the ordinance to look at ways to streamline the process," but it was the very lack of swift action while he was on P&Z which led to the lengthy and futile delays.

Pete also continues to suggest that the City explore "putting a tower up on the USDA site" on Buchanan Street even though AT&T has explicitly stated that the location does not meet their coverage needs. Interest in the USDA building stems from a recent law encouraging agencies to allow wireless facilities on publicly accessible buildings. Contrary to Pete Maass' optimistic spin, however, the facility director has emphasized that access would be "a security hazard" and asked "why is the city involved in this activity?" This approach, like a parallel effort to study a municipal tower on Albany Hill, is highly unlikely to resolve our wireless problem any time soon, and only serves to further delay existing applications.

Nick Pilch has been notedly silent on the cell tower issue with no posting on his website but he did say at the forum that he "certainly wants to take a look at the ordinance to see if it is preventing the applicants from installing cell antennas." Study is fine, but even a passing knowledge of recent controversies and lack of approvals should have made the problem clear.

The final cadre of candidates, Ulan McKnight and Sheri Spellwoman, have both taken positions favoring the current ordinance and opposing the AT&T facility.

Ulan, a newcomer to the cell tower conversation, thinks that he can resolve the issue by urging carriers to build distributed systems (DAS) which use fiber optics to link many small antennas, often on utility poles, to a central network hub. There are two problems with this. First the city is not allowed by law to legislate or even recommend specific technologies. Second DAS is not intended for use as mainstream wireless facility; it is used primarily used in malls, airports and stadiums, or in areas where there is rugged terrain. A macro cell site is always significantly more efficient and hence is the default implementation in communities like ours. There are also significant zoning issues with placing multiple antennas on utility poles in residential areas. If a carrier proposed a DAS system then we'd need to address it, but it is certainly no panacea.

The last candidate, Sheri Spellwoman, claims the ordinance is working fine as is. If you don't want cell facilities, and don’t mind spending scarce taxpayer dollars defending lawsuits, then perhaps it is, but as noted, no new installations have been approved this side of the freeway since 2005, and service is indeed terrible for most residents. Several times Sheri has mistakenly suggested that the city "pre-approve" cell sites (or that they already have done so). Unfortunately that is just not the way the ordinance works. Also she has taken a vigorous anti-business, anti-corporate stance, saying "I don't want to see these companies try to push us around because we are a small town." Nick Pilch echoed this sentiment at candidate's night. The trouble with this oppositional attitude, as Tod Abbott points out, is that "We're not hurting AT&T. Who we're hurting are the citizens of Albany who have AT&T service.

As final note, not only will the incoming City Council need to address amendments to our Wireless Ordinance to expedite the approval process, but demand is rising significantly every year. New data services coming on-line will only increase the need. Albany is still facing a lawsuit in Federal Court. We don't need another. We cannot afford our reputation as the most difficult city in California for wireless companies to do business. Enough is enough. Please vote for change.

*Click here for past coverage.