WIRELESS BACKGROUND INFORMATION -FAQ
Office for Community Technology (OCT) – Updated April 2019
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. Portlanders are increasingly relying upon cell phones, smart phones, and the wide range of wireless devices available instead of landline phones and wireline internet connections. Federal surveys show that more than half of all American households (54.9%) have dropped their landline phones completely. Dependable access anywhere and everywhere is viewed by many as essential to their daily lives.
- A wireless carrier has basic legal authority to place antennas to provide service to fill a coverage gap. The antenna placement decision itself is an engineering decision related to quality of signal/service.
- Under federal law, no state or local government can “prohibit or effectively prohibit” the offering of wireless services in any area where the carrier is licensed. See Communications Act, 47 USC §253(a).
- Federal law prohibits the City from making decisions modifying or denying any wireless sites based on allegations regarding human health impacts (47 USC §332(c)(7)). Arguments regarding effects on property values are mixed at best, and nothing in the statutes or case law indicates the City can legally take these arguments into account when making wireless siting decisions.
- Wireless carriers have enforceable rights under both federal and state law to place wireless facilities on utility poles.
- In Portland, wireless sites on private property are administered by the Bureau of Development Services (BDS) through the Zoning Code (Title 33) via land use reviews and/or building permits.
- The Office for Community Technology (OCT) reviews administrative permits for macro sites located within the public right of way, e.g. attachments on utility poles. The Portland Bureau of Transportation reviews permits for small wireless facilities. Administrative permits are not governed by the Zoning Code and are not appealable.
PLACEMENT ON PRIVATE PROPERTY (Zoning Code) vs PLACEMENT IN STREETS (ROW)
Administration of wireless siting within the City of Portland is shared between bureaus or offices. The Bureau of Development Services (BDS) administers and reviews requests for sites located on private property through the Zoning Code, Portland City Code Title 33 through land use reviews and building permits.
The Portland Bureau of Transportation reviews permit applications for small wireless facilities located in the public right of way (ROW) (Title 17 Public Improvements Administrative Rules) and the Office for Community Technology reviews requests for macro sites within 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.
OCT PROCESS OVERVIEW (MACRO SITE ROW APPLICATIONS ONLY)
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 macro 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. The purpose of the process is to provide notification of new wireless sites within the ROW. The pre-application process does not apply to modifications of existing wireless sites within the ROW or to small cells.
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 PRIORITY 4 STREETS (Macro ROW applications only)
- The wireless carrier determines that it wants to apply for a new macro site within the ROW. If the proposed new site is on a Priority 4 or within 400 feet of a Priority 4 street, this decision triggers a pre-application notice and meeting requirement for the proposed site.
- The wireless carrier sends a notice of an upcoming informational neighborhood meeting to discuss the proposed site. The city requires carriers to hold this meeting and provides that meetings may be moderated by a third-party.
- The notice must be sent to property owners and residents within 400 feet of the proposed ROW site. The notice must also be sent to the neighborhood association, any business associations, and the neighborhood district coalition.
- The notice will also have contact information about the pole owner. The large majority of utility poles are owned by PGE and Pacific Power & Light. CenturyLink (formerly Qwest), Frontier (formerly Verizon), and the City own a small number of poles throughout the City. It is the wireless company’s responsibility to identify the pole owner and provide the correct contact information for the pole owner on the meeting notice.
- The notice must describe the proposal and provide names and contact information for the wireless carrier and the City.
- The notice must be sent 14 – 30 days before the meeting date.
- The carrier holds the informational neighborhood meeting. The carrier is expected to discuss its proposed plan and to provide interested parties with certain information about the proposed site, including a photograph of the pole and a photo simulation of how it will appear after the equipment is attached. The carrier must also present design options to address mitigation of visual, scale, or other aesthetic impacts of the proposed site. Neighbors are encouraged to ask questions and offer suggestions about the design alternatives.
- The intent of the neighborhood meeting is to provide information and to provide a forum where neighbors’ questions about the proposed site can be answered. The city also asks that neighbors provide feedback regarding the carriers’ proposed design alternatives for the site and for carriers to consider this particular feedback before making its application to the City.
- If questions are asked which need follow up, the applicant should seek a primary neighborhood contact person so that answers can be provided and distributed after the meeting. If the carrier chooses to proceed, it must wait 30 days after the meeting to submit its application to OCT. During this period, the City expects the dialogue about the carrier’s proposal, which began at the informational neighborhood meeting, to continue. 1.The carrier’s application must include information on how it responded to public input. You may review the application form on OCT’s website. It is in the carrier’s discretion whether it chooses to modify the proposal in response to comments.
FORMAL APPLICATION (Macro ROW applications only)
Once it has received an application, OCT reviews the application against contractual requirements. Applications will not be approved if they are incomplete or do not comply with the contractual requirements.
- This is a process review. If the form and process are not met, OCT will return the application to the applicant for correction. Unlike land use review cases, there is no specific timeline for the City’s review of applications. This allows flexibility to respond to citizen questions and clarify issues with the applicant before action is taken.
- Please note that, like all other ROW permits, there is no formal notification process required for citizen or neighbors after OCT review is complete. That being said, the City has at times offered to provide a courtesy notice to the neighborhood association chair when the application is moved forward. This decision is made on a case-by-case basis.
- Once OCT has verified that the City’s Wireless Application process and criteria are met, it notifies the Portland Bureau of Transportation (PBOT) that the wireless application has satisfied necessary requirements and forwards the application to PBOT.
- At this point, the application is under the jurisdiction of PBOT. OCT is not involved in the technical ROW permit process. PBOT processes the application against the requirements of Title 17 of the City Code (transportation and street use provisions). PBOT staff performs their technical review and can approve, modify, hold or deny the application. Ultimately, if all other requirements are met, PBOT issues the ROW construction permits to the applicant and allows construction to commence. Applicants may start work the day PBOT issues the permit, or they may wait and start several months later.
- The antennas can be attached to an existing utility pole or the utility pole can be replaced with a slightly taller one.
- This permitting step can take a few weeks.
- Post-installation – After the facility is installed, PBOT conducts a field inspection to ensure the facility was constructed as proposed. If the facility does not operate in accordance with standards or stops operating correctly, i.e. noise and vibration levels are excessive, PBOT and/or OCT will require the facility owner to correct the problem(s).
“Small cells” or “Small Wireless Facilities” are umbrella terms for low-powered radio access nodes designed to complement the larger cellular network. They have shorter range than the traditional cell sites that have been deployed on utility poles in Portland’s ROW.
The City through the Portland Bureau of Transportation allows for the deployment of small wireless facilities in the public right of way through its vertical infrastructure program (https://www.portlandoregon.gov/transportation/78507).
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 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.
WHAT ELSE IS THE CITY DOING?
The City is active in legal and policy issues advocating for responsible regulation of cellular facilities. The City recognizes that potential health effects have been a concern for many residents. Unfortunately, the city is pre-empted by the federal government from considering potential health concerns when making siting decisions. The City continues to work with its federal Congressional delegation to request that the federal government re-evaluate potential health impacts of wireless sites.
The City has participated in numerous court proceedings to advocate for local authority to make certain decisions regarding wireless sites, including being the lead plaintiff challenging the FCC’s 2018 Small Cell order.
May 2009: Portland City Council unanimously approved a resolution requesting that the Federal Communications Commission update studies on potential health effects of radio frequency wireless emissions. City Council Resolution No. 36706.
August 2013: The City submitted comments to the FCC urging that the FCC revisit its Radiofrequency Exposure standards. The FCC has not acted on this docket.
March 2019: City Council unanimously approved Resolution 37418 requesting the federal government update studies on the potential health risks of 5G radio frequency wireless emissions and to publish those findings.
Relevant city bureaus, including OCT, Bureau of Development Services, and Portland Bureau of Transportation, continue to work together in reviewing applications and issues arising from cellular facilities in ROW or on private lots. Wireless sites on private property are governed by the procedures of the City’s Zoning Code and administered by BDS.
The City will continue to follow up on individual issues and complaints (e.g. noise, inspection issues, nuisance regulations, etc.).
To provide for more local control and local decision-making, federal law must change. OCT encourages concerned residents to contact the FCC and their federal Senators and Representatives.