Notice of pending wireless installation in public right of wayRead More…
Arts Tax: 503-865-4278
111 SW Columbia St, Suite 600, Portland, OR 97201
The City’s Broadband Strategic Plan recognizes broadband networks as fundamental infrastructure to the future of Portland’s citizens and businesses. Such broadband networks rely upon both wired and wireless telecommunications technology for both infinite capacity and mobility and connectivity. More and more Portlanders are relying upon cell phones, smart phones, and the wide range of wireless devices available instead of using landline phones and wireline internet connections. The Federal Communications Commission estimates that wireless phones are the source of over 70% of calls to the 9-1-1 emergency communications center, and federal surveys show that more than one third of Americans have dropped their landline phones completely (35.8%). Dependable access anywhere and everywhere, without signal loss, is viewed by many as essential to their daily lives. As the technology is mobile, access to the technology has very little to do with demand or interest in any particular neighborhood. It has far more to do with the right and ability of the carrier to provide an adequate signal to mobile users wherever those users happen to be in the service area, regardless of neighborhood. Reliable wireless access depends upon signal availability. Increasing numbers of wireless users, wireless devices, and data traffic means more antennas are necessary to provide reliable signals. Unsurprisingly, there is some debate in the community about the placement of wireless sites. Some citizens prefer such facilities be located away from residential neighborhoods. They cite sincerely-held concerns about potential health impacts, aesthetic issues, and property values. There are others who support wide availability of access to wireless choices, and regard such availability, along with good connections and competitive pricing, as an asset to the City and its neighborhoods.
As a result of increased concern by both citizens and City Council members, in 2009 staff undertook a public process to take a fresh look at right of way (ROW) regulations governing wireless attachments, which included multiple public hearings. The public ROW is generally the area between neighboring properties and includes street surfaces, curbs and sidewalk, and also frequently includes additional areas on either side of the sidewalk. This process looked at multiple options and included consultation with interested citizens, neighborhood representatives, the City Attorney’s Office, staff in the Office for Community Technology (OCT) and the Bureau of Development Services (BDS), and wireless industry representatives. The goal of the City in the revised process is to strike a balance between the City’s legal obligations, while also taking into account to the extent legally possible the sensitive nature and livability of our residential neighborhoods.
The result of the re-booted process is the current system adopted by the City Council for sites within the ROW. It requires wireless carriers to follow a hierarchy for placement of new facilities in the ROW. Under the 2009 City process, if there is an existing building or structure, such as a business, existing cell tower, water tank, or utility pole where new antennas can be placed (“co-location”), that option is preferred. Facilities can be placed on poles within the ROW, but only based on a four-tier street ranking, with busy streets and arterials (Priority 1) strongly preferred over neighborhood residential (Priority 4 – the least preferred). Generally, the re-tooled wireless siting system is set up to give preference to facilities placed on a pole on the largest or busiest street possible. The process developed in 2009 allows current utility poles in the right of way to be replaced with taller structures so there can be fewer facilities, rather than shorter structures that require more sites to reach “line of sight” coverage connections.
Before 2009, permits to place antennas on utility poles were processed like most other ROW permits—without neighborhood notice or input. The current process increases the ability of neighbors to participate in the process of siting antennas in the ROW in residential neighborhoods. This ability to participate is not absolute, however, and the current process provides for limited local input. Federal law makes it clear that wireless siting decisions are ultimately based on the engineering judgment of the licensed wireless carrier regarding the coverage needs in the area to be serviced. The City’s process is designed to facilitate the exchange of information between carriers and neighbors and to provide a forum where neighbors can ask questions and express opinions about the proposed site and aesthetic and design considerations. Ultimately, it is in the carrier’s discretion whether it chooses to modify the proposal in response to comments.
Administration of wireless siting within the City of Portland is primarily shared between two bureaus or offices—the Bureau of Development Services (BDS) and the Office for Community Technology (OCT). The jurisdiction for each office is determined by where the proposed siting is located. Through the Zoning Code, Portland City Code Title 33, BDS administers and review requests for sites located on private property. This is typically through land use reviews and building permits. OCT administers and reviews requests for sites located within the public right-of-way (ROW), i.e. attachments on utility poles located near the road or sidewalk.
Occasionally, a wireless site may involve both offices. For example, an applicant may propose to attach wireless facilities and antennas on a utility pole in the right of way, but may choose to locate the associated equipment on adjacent private property. In this case, OCT reviews the request for the wireless facilities on the utility pole, and BDS reviews the request for the equipment as a Type I conditional use review.
Because the Zoning Code does not apply to the ROW, approvals or denials to work in the streets are administrative permits, not land use cases. Citizen influence on ROW permit decisions is much different from citizen influence in land use cases. OCT does not make discretionary decisions. Rather, OCT staff review whether all applicable 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 of proposed new sites, even if these meetings are not structured like land use cases and even if the public does not have the same voice in these ROW permits as it does for land use cases. The City’s current requirements were designed with this input in mind.
While some citizens have recommended applying the full range of zoning rules to ROW applications, this recommendation is not reasonable. The City’s governing legal framework draws a sharp distinction between administrative ROW permits and land use processes. It is not clear that investing substantial City resources and staff for this issue is justified, particularly in light of other pressing challenges and current federal law.
Portland City staff appreciates and will follow up on references to what other cities are doing on this issue. However, given legal constraints, we are not aware of any local city code or licensing provision enacted or under discussion or development in any other US city that allows any US city to arbitrarily deny wireless service coverage, or to consider alleged human health impacts in connection with siting decisions. The City continues to manage the proliferation of wireless sites, balancing citizen and neighborhood needs and interests, the licenses for wireless carriers, and applicable legal constraints.
The Communications Act is the overall federal statute which governs the telecommunications industry. The Telecommunications Act of 1996 amended portions of the Communications Act and preempts local governments’ decision-making authority in approving or denying wireless sites based on the issue of health effects. This relevant section of law is located at 47 U.S.C. §332(c)(7) and states that “No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions.”
This section has been upheld in a number of court cases to invalidate any local decision that appears in any way to deny, delay, or obstruct any local wireless siting decisions on the basis of health concerns. The City does not have legal authority to recognize or consider whether a given wireless installation may have adverse health impacts on adults or children in the local wireless siting process. This is true regardless of the sincere belief or concern of anyone on this subject. Other cities that have challenged or tested this preemption have lost in litigation.
In order for a local government to legally consider potential health concerns in local siting decisions, scientifically documented or otherwise, Congress and the FCC would first need to act to amend this section of the Telecommunications Act.
The issue of whether property values may be affected by a new wireless installation is also not a legally recognized criterion in the local wireless siting process. The reason for this is that applicable federal law strongly promotes the deployment of any and all advanced telecommunications services and the lack of any case law or precedents the City is aware of which have successfully halted or delayed wireless siting for these reasons. Moreover, it is worth noting that the argument that property values are affected by wireless sites (positively or negatively) has very little documentation other than anecdotal sources. City staff is aware of arguments on both sides of this issue.
Wireless technology is mobile, and therefore access to such technology has very little to do with demand or interest in any particular neighborhood. It has far more to do with the federal right and ability of the carrier to provide an adequate signal to mobile users in and traveling through the service area, whether or not those users live in the neighborhood.
Portland has granted wireless carriers the authority to use the city rights-of-way since approximately 2005 in the form of right-of-way use agreements. These agreements allow wireless carriers to place its facilities on existing utility poles located in the right-of-way. Each carrier’s agreement is substantially similar to that of other wireless carriers, and each agreement is available on OCT’s website. Beginning in mid-2009, these rights-of-way use agreements require carriers to follow a pre-application notification process for new sites proposed in certain residential areas. The notification process seeks to balance the need for wireless infrastructure with the concerns of residential neighborhoods for prior notification for such wireless sites. In 2012, OCT promulgated administrative regulations to provide clarification on the pre-application process.
ROW permits are administrative permits in public streets, and NOT discretionary land use cases. There are two phases of this process for new ROW applications, and in this section we have outlined OCT’s pre-application and application process for new sites in the public ROW. Please note that installations on private property are managed by BDS under existing land use codes and procedures, governed by the Zoning Code (Title 33). OCT’s wireless ROW siting process is very different from land use cases for private property as administered by BDS.
PRE-APPLICATION PROCESS FOR RESIDENTIAL AREAS (ROW applications only)
FORMAL APPLICATION (ROW applications only)
The City continues to carry out its responsibilities under applicable law, but is also active in legal and policy issues involving for responsible regulation of cellular facilities. For example:
Given the significant legal constraints on the City and the increasing reliance of Portlanders upon wireless devices, OCT believes its review process strikes a balance in an otherwise difficult situation. To provide for more local control in this area, the only realistic recourse at present is to change the governing federal legal mandates. Such change can only be achieved by citizens asking Congress to pursue necessary amendments of federal statutes at the national level. OCT encourages concerned citizens to continue to urge Congress to address these issues responsibly and promptly.