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Speaker1:
Pretty much. No. I've been a litigation attorney for over 30 years. For more than two decades, I've been handling cell tower cases across the United States, including litigation under the Telecommunications Act of 1996. I've admitted to federal courts and something like 23 states. Nine of the 13 US Supreme US Courts of Appeals and I've admitted to the Supreme Court since 2000. I mean, I eat, sleep and drink telecommunications.

Speaker2:
In progress.

Speaker1:
And local zoning ordinances. So I know everything that gets town sued when they win, when they lose problems. I've seen zoning applications from New York, California. So I have a pretty good view of this stuff. For about 15 years, I would actually do peer review. They would draft an ordinance and ask me to review it, make changes because of the the current state of the telecommunications law. I typically refuse to do that now. Now I draft ordinances from scratch because that's the only way to completely protect local government. I had an opportunity to review your code and I'm talking about the townships of Newtown, Upper Upper Wakefield and Wrights Town. And let me start by saying I recognize that a a an experienced municipal attorney spent a lot of time working on this and tried to do a very good job, and they did a pretty good job. I'm going to talk to you about a couple of issues on this thing, because if you want to talk about health concerns, that comes little later. My biggest concern is there is one. What I have to call a fatal gap. A fatal gap is the type of gap in an ordinance that renders the entirety of the ordinance moot. If, for example, one of the sophisticated site developers, like a Crown Castle or an extended American tower, decided to come into your township, and they encounter this ordinance as it's drafted using the gap.

Speaker1:
They would essentially be able to put wireless facilities pretty much anywhere they wanted, and the townships would be powerless to stop them. And if they ever turned down an application, the site developer would file a lawsuit and win pretty much every time. So let me get right to the the fatal gap. And to understand how a fatal gap works, your first step is understand that. Under the Telecommunications Act of 1996, as it was adopted by Congress, Congress actually preserved to local governments the general authority to regulate the placement modification of wireless facilities. Now that general authority is subject to six, what are largely procedural constraints? And as long as you comply with these procedural constraints, you pretty much have the power to do what you want with wireless facilities. The problem is codes which are not drafted in a complete manner fail to apprise the local boards of what those procedural constraints are. And you can't expect a local zoning hearing board to comply with procedural requirements when they don't know that they exist. And that's the biggest problem. Now, two of the constraints which the Telecommunications Act of 1996 imposed upon local governments are these. One is that no local government may prohibit or effectively prohibit the provision of personal wireless services. Now, when that came down in 1996, every time there was a denial, the applicants would file lawsuits against local governments.

Speaker1:
It took only two years for the cases to go up to the Circuit Court of Appeals. So in 1998, the Court of Appeals came up with a test. If an applicant claims that a denial of their application for a cell tower or other wireless facility would effectively prohibit an identified wireless carrier from awarding personal wireless services, they have to prove two things. Number one, they have to prove that they suffer. And an identified carrier suffers from a significant gap in personal wireless services. And number two, they have to prove that their proposed installation at the specific site they wanted on the specific portion of the site at the height they want is the least intrusive means of remedying that gap. And there's no possible alternative locations. So that is one constraint, the effect of prohibition. The other constraint I need to address is the substantial evidence constraint. And that says if any local government wants to deny an application for a wireless facility, any denial must be based upon substantial evidence. So that is addressed partially in your code. If I go through your code. And I get to. Page 13. It's paragraph 803i5c5. Whoever drafted understands the effective prohibition issue. And so they put in here, quote, the special exemption application shall include evidence that a significant gap in wireless coverage or capacity exists in the applicable area and that the type of WCF being proposed is the least intrusive means by which to fill that gap.

Speaker1:
That's great. And so far as it goes, here's the problem. Number one, who gets to decide if they've proven both of those things well under your code, it would be zoning hearing board. Well, how does the zoning hearing board know how to decide that? More importantly, how do they know what evidence to ask for? Remember, you put this in the hands of your zoning hearing board to decide the application. But if you don't provide them with evidentiary guidelines, you are throwing them to the wolves. The site developers will chew them up and spit them out. And here's why. Suppose an applicant comes in and says we have a significant gap and the hearing board is only hearing voices. Oc Give us evidence, give us drive, test data. A high in the Second Circuit, which is where we are. The site developers are arguing that unless your code says they can ask for it, your local hearing board cannot ask for evidence. Well, they can't deny it without substantial evidence, but they can't get the evidence because they have no authority to ask for it unless your code says they do. So the very first thing sophisticated local governments are doing is they're providing evidentiary guidelines. So for example, and it's even before then in the application requirements, the codes will provide what an applicant has to produce if they're claiming they have a significant gap in service or a capacity deficiency.

Speaker1:
If you don't empower your hearing board to ask for that, then they cannot ever deny an application or how bad, no matter how bad it is. If they want to put a 5150 foot cell tower five feet from Aerosmith's front door. All the applicant has to say is we have a significant gap. This is the least intrusive means to remedy it, and your board is now without power to deny the application. What makes that worse is right now in the 5G rollout, in 95% of the applications, I see applicants routinely submit false application materials, false propagation maps, false FEC compliance reports. Your board will have no idea when they're submitting something false and they not able to ask for anything to show the accurate information. So, for example, propagation maps, the number one false information they submit company will commit and say, look, Verizon as a gap in service. Here is a computer generated propagation map. For years, sophisticated local boards have recognized the propagation maps are bogus. What they do is they they reverse engineer them. Site developers don't look for the least intrusive site to put a cell tower. They look for the cheapest. And then they will use computer software to generate a map to make it look like this is where it has to go.

Speaker1:
In fact, the August before last, the FCC staff got so sick of looking at false propagation maps that were being submitted by the wireless companies to the FCC. They went and did their own testing. They did 10,000 miles of testing, 26,000 tests in nine different states. And the FCC staff determined that the current propagation maps that they submit had an accuracy level of 16.4%, minimum to a maximum of 64%. So they're gone. So what do you do? Sophisticated local governments are requiring applicants to provide probative evidence, just like it's a court. If an applicant claims to have a significant gap in coverage, this refers to a geographic area. You require them to produce hard drive test data. They basically attach a recording device to a phone. They drive a car through the area where they claim to have a gap. The device records actual signal strengths. Every few milliseconds they come in, they say, OC in the township of Newtown, you have flat terrain. And so the minimum signal strength we need for reliable service is -98. Dbm you get now look at the actual hard data not made up stuff on the computer, the actual recorded signal strength that will show you, number one, the existence of any gaps. Number two, the location of the gaps. Number three, the geographic boundaries. If and only if you get that information, does your zoning hearing board have the ability to determine if there are any gaps in service? Or, better yet, if putting it down here makes any sense because there are gaps and the tower doesn't remedy the gaps, you're going to need more towers.

Speaker1:
Now, site developers have no problem putting more towers than are needed because they get paid month after month for every single tower they build. I've seen many jurisdictions where they could have covered the whole town with three cell towers and instead they put up six. Now, because it's necessary, but because they make twice the money. It's pretty much the same for capacity deficiency. Again, sophisticated governments will say, okay, if you want to claim you need a new tower for a capacity deficiency, you must produce probative evidence. What does that mean? A capacity deficiency is a deficiency where there's no physical gap in service. However. The system is maxed out so that in peak periods they will suffer drop calls. Getting evidence of this is easy. All the carriers have denial of service records. They're in their computer. You can say, okay, if you claim we have a capacity deficiency on Smith Street, give us the denial of service records. They can just hit a few keystrokes on the computer and print out a list of all drop calls on Smith Street for a specific time of day or specific day of the week, whatever that is direct probative evidence of the existence or absence of a capacity deficiency.

Speaker1:
Now, in the context of the 5G rollout, this is critical for a number of reasons. Number one, the largest site developers are racing with each other to build as many wireless facilities as they can. And number two, they're preparing in advance for streaming services. In other words, in many jurisdictions, they want to put up wireless facilities every 150 feet in residential neighborhoods, not for 4G, not for 5G, but for streaming services. They want to replace Cablevision and all your hard wired services. And unless you know what evidence to ask for your zoning hearing board will be completely unable to ever deny any application, no matter how bad it is. So you must provide evidentiary guidelines what your local board should ask for. Even better, I put them in the application requirements because you don't want the shot clocks to work against you, which is a whole nother matter. So in the application section I put in that if they're saying if the applicant intends to claim they have a significant gap in service, they have to provide the hard data showing the actual signal strengths for each frequency with which they are currently providing services to their end use consumers. That means by time it gets to the zoning hearing board, they will have the actual probative evidence which will enable them to deny, to entertain this application on a case by case basis and determine whether or not they are legally required to grant the application.

Speaker1:
And what I mean by that is if in fact there is a significant gap and the post installation is the least intrusive means of running the gap, then your board must grant it. Even if it violates your local zoning code. In reality, that happens about 2% of the time. Most of the new facilities are from five G, and if you've got four G, you don't even have to give them five G necessarily. So far, one federal court in the Second Circuit says if you got 3G and you want to go 4G just because you want to fade out, 3G doesn't mean you have a gap. We don't have to give you new permits to put a 4G or five G. If you already got 3G, that's a whole nother ball of wax. But I will tell you this. If you don't put in the evidence, your guidelines, the rest of your code will be useless. If Crown Castle or X Net or American Tower comes in and they see this and they want to put up or else facilities, they will be able to put them anywhere they want and you will be powerless to stop them if you do. If you deny an application, they'll sue you in federal court, you'll lose.

Speaker1:
And then you'll say, Oh, Telecommunications Act tied our hands. No, it doesn't. Your code just doesn't wasn't prepped for it. And again, I don't want to have this viewed as whoever drafted this didn't do a good job. They did a good job. But unless you do this stuff all day long and you see this stuff all day long, all across the country, you wouldn't know this kind of stuff. So this is your most critical defect. Now, in addition to that, there's a lot of little things you need, for example, on your FCC compliance reports. Your code requires facilities to be FCC compliant. That's great. It is a strict it is severely important that local governments have provisions to prevent to protect against illegally excessive levels of radiation coming from these facilities. Because while the FCC has set limits as what it deems safe, the FCC never enforces the limits. The FCC never test facilities and never requires owners to test them. So sophisticated local governments are enacting provisions to protect their citizens because you're the first and only line of defense against being overexposed to illegally excessive levels of radiation. The easy one is the FCC compliance reports. I've seen many false FCC compliance reports, and there's only two ways really to falsify them. And it's easy to spot if you put in your code. And here's what they are. When they prepare an FCC compliance report, what they say is when this facility is built, the level of radiation that they're going to expose members of the general public to will be within the FCC's limits.

Speaker1:
And how do they know that they do a mathematical calculation? They can't test the facility because it doesn't exist yet. There's two ways they falsify the FCC compliance report. The first one is they represent it will be in compliance, but they refer to the wrong standard. There's two different standards. There are what is known as the general population exposure limits. That's the maximum level of radiation that can expose members of the general public to. There's another set of limits which are known as the occupational exposure limits. Those are much higher levels of radiation, which are approved only for people who work on towers and have knowingly made a conscious decision to expose themselves to higher radiation levels. Very often, applicants will submit FCC compliance reports saying, Oh, the FCC is going to be within the FCC. The tower is going to be the FCC's limits. What they don't tell you is they referring to the wrong sets of limits. So your code should say, on the face of any FCC compliance report, number one, they identify which set of limits they're referring to. Number two, they must identify on the face of the report, the minimum distance factor. What does that mean when they start that calculation? How high is the radiation level going to be? The first thing you have to start with is the minimum distance factor.

Speaker1:
What is the closest distance? Anybody will be able to get to the tower and if they want to falsify their calculation, they just have to start with the minimum distance factor. That's false. I a situation where people get within five feet of the tower and they added a distance factor of 56 feet, which was a joke. So they need to put that on the face of the report. If you put those two things as requirements of the face of the report that protects your zoning hearing board against bogus FCC compliance reports. Now. What about when the tower is built? How will you know if it's exposing your citizens to illegally excessive levels of radiation, which even the FCC admits would be dangerous? Sophisticated local governments are putting in random testing permissions, and they're very simple. What it says is at any time the town can randomly test the radiation emissions from any facility. We can hire an engineer. We're not going to tell you when because we don't want you to power down the facility. And if our engineer test the facility and find the facility is is exposing members of the general public to radiation levels which exceed the FCC's limits. Then something happens. What happens? Usually it's one of two things.

Speaker1:
In my mind, the smartest thing is you schedule a hearing and the hearing says. We're going to schedule a hearing and within 30 days you're going to use the owner of the facility is going to show cause why your permit shouldn't be revoked and why the tower shouldn't be ripped down and why you should be prohibited from filing another application for a year. Without which that's what's going to happen. And to show cause they'd have to show that the illegally excessive radiation levels were due to malfunctioning equipment. It wasn't because they increased the power output or they had the more intense it has to be malfunctioning equipment that satisfies the constraints of the due process clause before you revoke the permit. The other thing you can do is more simple. You can just say, okay, I'm going to find you first offense, five grand, second offense, 25 grand, something like that. Almost as important as the fact that you are randomly testing is that the wireless facilities, the site developers that at least they know this because they will never want it reported in the test that an RF engineer tested and found that their facilities were exceeding the FCC's limits. Nobody wants that PR problem, so that's a really good thing to put in there. Oc Is anybody still awake? Does anybody have any questions? I apologize if I'm going too fast.

Speaker2:
Go fast.

Speaker1:
So you've got your lack of evidence, your guidelines, your application requirements are really lacking. You need to make sure, especially because you're under the gun with a shot clocks. The shot clocks are 150 days, 90 days and 30 days. So you want to make sure that when an applicant comes in with an application. At the very minute they file it, you have everything you need to enable your zoning hearing board to make an informed decision. And as long as they have the evidence and as long as your code provides for it, your zoning hearing board gets to decide what evidence they will require the applicant to produce. They also decide what weight to give the evidence and when they make a final decision, as long as there's some evidence in the record to support it. Federal judges are loath to overturn them. And what that means is, number one, it reduces the likelihood that you're ever going to get sued under the Telecommunications Act. And even if you got sued, it dramatically reduces the likelihood you going to lose. So you don't want to get sued. So you want to codify what the hearing board can do, and you want your applicant application requirements to require the applicant to produce everything you're hearing board needs to make those make those determinations within the time afforded them the shot clock. As you blow the shot clock, now you lose anyway. So and this addresses the number three, the three main ways you get sued. How do local governments get sued on the Telecommunications Act? In every case, the applicant either alleges they blew the shot clock that the denial was an effective prohibition or that the denial wasn't based upon substantial evidence.

Speaker1:
That's like 98% of the cases. Of course, the entire United States. And if you add the evidentiary standards and the permit requirements, the application requirements, you knock out almost 100% of them. So that's really what needs to be done. Notice requirements. Your code is lacking in notice requirements, not fatal, but it's always a good idea to give local residents advance notice so they can appear at any hearing. And you should have hearings and they can voice their objections and raise any relevant information that the board can actually use. So that's very important. In your notice requirements. If you agree to do that, it is critical that you codify what the notice has to say on the outside of the envelope. And here's why. For years, local government said, okay, you want to build 150 foot cell tower. You, the applicant, have to serve notice to all property owners within 5000 feet. Well, the newest game in the wireless industry is they hire marketing companies to send those notices. And the envelopes will say things like ABC Marketing Corp. and they'll use instead of a real stamp, they use a bulk permit. And when people see letters from ABC Marketing without a postage permit, they automatically assume it's junk mail and they throw it out. This is not by accident. This is done on purpose. They're saying, Well, we fulfilled our obligation. We sent notice of the public hearing and nobody came. Well, that's because they thought it was junk mail. So when I put out this. Yes.

Speaker3:
If we put a clause in there said it has to be certified mail.

Speaker1:
Even certified mail, if they don't know who it's from, if they see it from a marketing company or some company in the Midwest or something, what I do is this. I put it on the outside of the envelope. They must write a notice of public hearing for new cell tower or wireless facility in all bold, at least 12.12 point font size. Now it's on the outside of the envelope and bold. The residents are going to read it.

Speaker3:
Thank you.

Speaker1:
All right. And then the other thing that's really on the battle front right now is 88 compliance. There's a segment of the population that is susceptible to adverse health impacts from exposure to this radiation, even at levels that don't normally affect other people. There is litigation pending right now that those persons claim to be disabled in the meaning of the ADA and are thus entitled to reasonable accommodation. And under federal law, local governments are obligated to afford them reasonable accommodations. I will tell you that I have a case pending before the Ninth Circuit Court of Appeals. There was an individual, Mr. Wolf, it's called Wolf versus City of Millbury. There was an individual they put a wireless facility probably six feet above his bedroom, and he got very sick. His doctor told him how to move out because he was suffering classic signs of overexposure to microwave radiation. We sued for reasonable accommodation. The District Court in the Northern District of California, the federal court dismissed the case, saying that asking them to regulate based upon health would violate the TCA. That case is now on appeal, now going before the Ninth Circuit Court of Appeals. And if it doesn't go away, or even if it does, I think it's headed up to the US Supreme Court.

Speaker1:
So in most cases I advise my clients, my municipal clients do a section to the ADA and just say, will the ADA compliant or just put reserved? I can't advise clients in the Ninth Circuit to put ADA provisions in there until Wolf is addressed in the Ninth Circuit. Then the Second Circuit where we are, I think we have a stronger claim. No federal court has ever said that EMS sensitivity is not a disability. Quite the contrary. The only federal agency that ever passed directly on on that issue is the United States Access Board. And the Access Board has determined in their mind that if the adverse symptoms are significant enough, EMS sensitivity is a disability under the ADA, which is why I'm litigating Wolf up to the Supreme Court, if necessary. Och, I'm sorry that I went so fast and covered a lot of stuff. If anybody has questions or they want to follow up, I'll give you my phone number. But I will tell you again, based upon 30 years experience and having dealt with these companies all over the country, the township. I can't hear you.

Speaker2:
You went off. Andrew. When? Jerry, can you hear me?

Speaker3:
I hear you.

Speaker2:
We're going to call this office right now. And? And I paid for an hour of this time. He does talk fast. Thank God. We also took the liberty to record this. Simply to send it out to you.

Speaker3:
That's a good idea. I'm glad you did, because I took notice. But I'm sure I missed.

Speaker2:
I know. I saw that. Everybody's trying to do that. We're not going to put it out anyplace else because it's not something we want to. That's not our intent. We have about 20 minutes left on the call. We're trying to reach his office now. Please, please. If you have questions, feel free to do that. And I have a question that I'm going to ask him, because I think it's really important, and that's about insurance from the telecommunications companies and also the people that are putting up the towers. They seem to be shifting from any research. We've done the legal liability, and we want to know if there's any insurance that can be secured on that to hold the township's harmless. Because, quite frankly, with the level of sophistication that we have in our communities, I think we could be opening ourselves to a can of worms. I mean, this is something we have to do, but we'd like to be a little more in control. So that's my only question.

Speaker3:
Well, the big question is, considering all the amendments or the NSA is suggesting to the audience, do we want to ask them to actually. And what's missing to our or to this audience, because you still had the days to know a lot more than I know.

Speaker1:
And thank.

Speaker2:
You. So we're in and I are absorbing the cost for this communication only because we we feel that we didn't know anything about this. We we wanted to support anything we could input. If you feel that that's something that would I think would be brilliant, if that's something that would be good for everybody, maybe the townships could get together and.

Speaker3:
Well, the way that that would have to work is that you'd have to basically. Submit something like a proposal because I don't know what it's going to cost, but it could be several thousand. And the judge, you would have to review it and approve it. The individual townships would do the same, that that would take a little bit of time, but it's justified. And I guess whatever the cost is, they have to decide whether they want to incur the cost or not. I can't commit anybody to that.

Speaker2:
I understand. That's an excellent, excellent.

Speaker4:
Well, at this Wednesday's meeting, we have a vote that's essentially going to say, send this back to the joint zoning council. We're voting on this. I'm not sure how to vote will go, but send this back to the Joint Zoning Council with comments from our engineer, which doesn't address any of these issues in here. Correct. If we do that, it doesn't mean that we stick with this or when it gets back to the Joint Zoning Council, can we bring up this issue of the fatal emissions and the other points that Mr. Campanella pointed out and then decide to not scrap this totally. But just like you said, Jerry, maybe hire Mr. Campanella to fix these fatal omissions and add some of the other things in there that we may want.

Speaker3:
Yeah. Why not have the model ordinance if it's at all possible? But again, it depends on the cost. We have to have the votes of the three municipalities to approve that act. And at this point, I have no idea what it's going to cost to do it. But I'm assuming that that Andrew does as I'm sure he's done.

Speaker2:
Please let me back up so you can ask him.

Speaker1:
Jerry, can you hear me? Yeah. Yes. Great.

Speaker3:
Yes, sorry about that. Thanks. Go on. Andrew, can I ask you a question, please? Listen, there's a lot there's a lot of work that needs to be done on the ordinance. Based on what you just described, I'm assuming that you do these ordinances all the time. The smart ordinance is something that if you were authorized to to amend it, to make it as complete as possible, you could do or is something that really needs to start from scratch.

Speaker1:
To be candid, I would redo it from scratch because it's that's the only way that it was bulletproof. I I've taken 20 years worth of case law where the federal judge said, you did this right, you did this wrong. You can do this. You can't do that. And I built it into an all inclusive ordinance, and that is as bulletproof as possible. So, you know, I could do piecemeal. My problem is if I do piecemeal and I miss something I don't ever want, one of my municipal clients getting sued said, Huh, we use Campanella and he got us in trouble. Nobody gets to the violence.

Speaker3:
I understand that, Andrew. By the way, we're in the third circuit, not the second. Oh, just so you know that that's Pennsylvania, New Jersey, Maryland, Virgin Islands, all third Circuit.

Speaker1:
I believe I am admitted to the Third Circuit.

Speaker3:
Yeah. So am I. So any that you could use, could you prepare a some kind of a proposal to that we could present to the joint and the municipalities with the anticipated costs, whether it's by the hour or whatever, it would be a range of costs. So we have something to talk about both at our supervisor meeting in Newtown on Wednesday evening and the first Thursday of June. Talk about with the joint folks. I'm not sure where this is going, but I want to be for arms. I'm also a trial lawyer and I'd like to I'd like to have more evidence, so I need to approve.

Speaker1:
So I charge a one time flat fee of 80 $500. And basically, my, my typically my standard ordinance runs right around 47 pages, single spaced. Now, there's no such thing as a boilerplate ordinance. I will tell you point blank, if you want to make it as as bulletproof as possible, basically, I have to take your existing zoning code, any comprehensive plan, any general plan. The new ordinance must take into account your topography, your zoning districts, US stock districts, your environmentally sensitive properties, the existing legislative intent in your code. And I custom draft a code to merge seamlessly with your existing code and everything you have already. I mean, there's no it's not like I can take a boilerplate one and say, oh, let's just tweak it and stick it here for the township. It doesn't work that way. I understand. So 85 covers it. I mean, I usually take about 20 hours to put one of these things together, but they're good. They're really good.

Speaker3:
Where's your office, Andrew?

Speaker1:
I'm on Long Island in New York. Okay. All right.

Speaker4:
We have the Bucks County Planning Commission that's putting together a comprehensive plan that tells us all about the historical districts. I don't know if that kind of stuff helps you with maps and so on.

Speaker1:
That's huge. And here's why. One of the things that counters when you you have this balance of power between the wireless industry and local governments, because federal courts have specifically said when Congress enacted the Telecommunications Act, it intended to have a balancing of power between the two. The great part is if you bring in historic properties or environmentally sensitive properties into the mix, now you have the National Historic Preservation Act and the National Environmental Policy Act, and you can use those to or to your advantage. Your planning board can say, we recognize the possibility that this will adversely impact a historic property. Now, if it adversely impacts historic property, the township can send a request to FCC for Rule 106 review, and they have to do a full historic impact analysis which stops the shot clock. And when I say historic property, that includes not merely properties which are listed on the National Register of Historic Places. It would include any property or district which is eligible for inclusion and that is very powerful. The same is to be said for environmentally sensitive property. So if your local board determines that a proposed installation may have a significant impact on the environment or historic property or district, you can make a request to the FCC. The FCC doesn't even know what to do with it, and it'll do resources. That in and of itself is a powerful tool available to local governments. When you're going up a site developer, they're trying to bully you or intimidate you or threaten.

Speaker4:
Well, we have at least one historic farm and a residence on that farm with perhaps very sensitive people. And we have other environmental protected types of properties, historic districts. I don't know how this would affect historic districts, but we do have those maps and everything.

Speaker1:
Well, even when a site developer comes in and wants to put in a distributed antenna system with 48 nodes, believe it or not, that is a federal undertaking. The reason that's important is as a federal agency, the FCC must apply federal law to any federal undertaking. And since this license under the FCC, it's a federal undertaking. And so, again, my ordinances are not designed to keep out old wireless facilities. They're a necessary evil, no less necessary than sewage treatment facilities. But for the same reason, you don't put a sewage treatment facility right next to somebody's house, you want to control the placement of wireless facilities. My ordinance is designed to give you the maximum power to control these things to the greatest extent Congress intended to, when it preserved to you what's called the general authority under C Section eight of the Telecommunications Act of 1996. So that's what this is designed to do. And the second part is it's designed to make sure that if and when you decide to turn an application down that is as immune from challenge as possible as attorneys, you guys might recognize that federal judges do not want to be zoning board of Appeals, and they are loath to over. Turn. Local zoning determinations, so long as there's some credible evidence to to support them. And that's what I designed the codes to achieve.

Speaker3:
I'm guessing we need to find the proper engineer who would be able to look at that evidence and make a really not.

Speaker1:
It's really not that difficult at all. Laypersons can do it if you give them the proper guidance. That's why I said in the beginning, usually what happens is a sophisticated government will say, okay, Verizon, you've got a gap in service. Show me what your minimum signal strength is to provide reliable service. If you say it's -95, why? There's other cases where you said it was 98 or 101. So they'll have to come in and show you what the minimum signal strength is. Now, if they give you the actual hard data, it's black and white. If this area is where the signal drops down to 110, that's a gap. Now, let's talk about the least intrusive means of remedying that gap, because the site developers never look for the least intrusive site, they look for the cheapest site. They're rolling out 3 to 400000 of these listings. They save 1000 a facility. It's a fortune. So they simply look for the cheapest site to put it. And then they get their off engineer to say, Oh, yeah, it has to go there. The other sites no good because it won't meet our coverage objectives. What does that mean? It's nothing. So again, information is key. Knowledge is key if you know how to look at this stuff. But yeah, you can get. There are some RF engineers. There's a guy the best guy I know is out of Connecticut. His name is Ron Gray. He only represents municipalities and the guy's a straight shooter. He's going to look at it and say, yeah, there's a gap. No, there's a gap isn't a gap. You have to give it to them, whatever. But there are some engineers out there. In most cases, it doesn't become necessary because the reality is.

Speaker3:
A uniform zoning hearing officer, could there's an engineer.

Speaker1:
Be able to? Well, for example, in most cases, when it's a site developer coming in, they won't give you the pro bit of evidence, but they carry doesn't want to give it to you. Number one, there is no gap, so they won't give it to you. Even if there is a capacity deficiency, they won't give you the drop call records because it's bad for public relations. They don't want people to know they're drop calls. So again, it maximizes your power in many jurisdictions. Like I just didn't want a city of Dalton Gardens, Idaho. They're convinced just by adopting my ordinance, the wireless company is just going to go around them. All the towns around them have no code, so they'll just go around them and build elsewhere.

Speaker3:
That's not a bad resolution either, if we could avoid it altogether. But well Bucks County is going to get it's going to get it some.

Speaker1:
Yeah. The other thing is.

Speaker3:
It's possible we have a. I'm sorry, Andrew. Complete. Please don't mention.

Speaker1:
No, it's. It's when you have this power, there's nothing to stop you from approaching a wireless industry. Hey, hey. Why don't you come in and we'll work out something we can hardwire everything that's up to you. So I'm sorry. What are you going to ask?

Speaker3:
I was just going to ask if you could. We have a supervisor meeting in Newtown on Wednesday evening. Would it be possible for you to put together a proposal if say anything in Pennsylvania, anything more than 5000 requires it be on the agenda? It'd be it requires a vote discussion, public comment on all that. So we would need to have something tangible that we could present first to the supervisors to discuss. This would be a plus to joint. Newtown covers half the cost of the juncture anyway, but it's going to take a little bit of time politically to move through all of this. Sure. So that's something you could get to, I guess. Dennis, I suggest we send it to you. As the chairman of the new Board of Supervisors. Sure, sure. To send it to my township manager. That's. You make that decision, not me.

Speaker1:
If you just send me an email, I will reply and I can probably get it to you. I probably get it today. I can send a response back with a sample retainer agreement.

Speaker3:
Yeah. Butane is a good idea. Yes. Thank you. Do I have your email somewhere?

Speaker1:
I'll give you my email right now. It's AJC as an Applejack candy at Campanile, which is spelled K as in Mary Pan as in Nancy Eli. P.s. As in Peter Charles. Dot com. And I'll give you my phone number as well. And all of you can take this down in case you have any questions. 516. 7461600. And just to confirm on the record, I am not admitted to the Commonwealth of Pennsylvania. The only state courts have admitted to would be New York and Connecticut. And I retired from Connecticut, but federal courts, I'm still admitted to nine of the 13 circuits and the Supreme Court. And I think federal courts in like 23 states. I can't keep track.

Speaker2:
I have a question. Yeah, sorry.

Speaker3:
I'll just be a problem. I don't see us really running into litigation very quickly, but you could always be private.

Speaker1:
Yeah.

Speaker2:
Andrew, I have a question that's about insurance on behalf of the communities, because I'm a resident. The telecommunication companies and the installers, do they give insurance policies to the communities to hold them harmless? If people go back on us for litigious reasons, for health reasons, for.

Speaker1:
Anything, they usually don't. The wireless industry's argument is, look, the FCC has set the levels that the FCC deems safe. And as long as we comply with those limits, we're no different than any radio station or television station. There's there's wireless signals going through the air all the time. And so we don't see any need to be required to provide insurance for anything. I don't know of any carrier that would actually cover, theoretically, injuries from exposure to RF radiation. I will tell you that at least once a week I get calls from people allegedly getting sick from exposure of radiation. I can also tell you, I have cases where we found facilities dramatically exceeding the FCC's limits because, again, the FCC never tests them, never requires the onus to test them. And the wireless industry knows that. So it's it's a bad scenario.

Speaker2:
Is it written into the code anywhere where they have a regular testing system set up? Well.

Speaker1:
There's there's three different types of arrangements. All of them call for random testing, basically use the power in the local government to perform random testing, whatever they want. Any RF engineer they hire from go test any facility at any time. The safest way to do it is to have the town pay for the testing. And it's not that bad. You can probably find someone to do it for like $400. The key is that you make the wireless industry know the testing is being done because they don't want to be caught exceeding the FCC limits. The other thing you can do is you can put in the code that the owner of the facility has to pay for. Now, some jurisdictions have done that and they've been threatened with litigation, but it hasn't happened yet. The third possibility is the key time provision. First time I did this was back in the city of Calabasas, California. Oh, God, probably eight years ago. The key provision says that any citizen of the township can hire their own engineer. And if they find a facility exposing the general public to radiation levels which exceed the general population exposure limits, they can personally file a lawsuit against the carrier and the company that owns facility. And if it's proven that they exceeded the FCC's limits, they have to pay. The company has to pay their attorney's fees. It turns everybody, it deputize everybody. You know, I don't know if that's going to precipitate precipitate litigation, but the safest way is just have random testing done by the town. That's the least chance you're going to get in trouble.

Speaker2:
Okay. Any other questions? Go ahead. I'm sorry. I have a question. Can you use all three of those methods, Andrew, or do you have to just choose one?

Speaker1:
There's nothing stopping you, but the more you use, the greater the likelihood that you're going to get challenged in the lawsuit. And again, lawsuits under the Telecommunications Act are kind of a hollow threat because some of the Telecommunications Act, US Supreme Court, has ruled that if a if a wireless company or a site developer sues the local government for a violation and they win in federal court, the the prevailing plaintiff does not get compensatory damages, does not get attorney's fees. The only thing you pay for is your own attorney's fees. But these cases are handled on expedited basis. By law, they have to be treated so. So it's like a motion, the whole case last a couple of months. And I can tell you exactly what happens if you ever violate the Telecommunications Act. They sue you. They file a complaint right away. The judge calls both parties into his chambers and says, Can we work this out? Can you make the tower shorter? Can you put it on a less intrusive location? Can you put a less intrusive spot on the location? And if the parties can't come to an agreement, basically the carrier says, we want to move for summary judgment and the town says we don't violate the law. We want to move for summary judgment. And they set up a motion schedule. You're going to file your motions within three weeks. You're going to put in your opposition within three weeks and your replies one week. And then the judge decides the case on paper. There's no there's no depositions. There's nothing. The whole thing is over in a couple of months. So it is by far the cheapest litigation I've ever seen in any federal courthouse anywhere in 30 years of litigation.

Speaker4:
I hate to ask this, but in all the arguments I've had about this, there's something called Act 50 in Pennsylvania that's been thrown at me. And I'm not a lawyer and I didn't read the whole act. But are you familiar with that act?

Speaker1:
I am. I'm not an expert, but I read it and I can't give you advice on Pennsylvania law. But I can tell you this Act 50 is what is known as a hoodwink law. It's not as bad as most of the ones I've seen. Hoodwink laws are laws that come about when representatives. Groups favorable to the wireless industry go and deceive state legislatures into adopting laws that strip local governments of far more power than the state legislature ever intended. So Act 50 is one of these hoodwinked laws where supposedly they approach the legislature, say, Listen, you know, we really want to just avoid a lot of headaches and we'd like you to adopt a law that allows us to expedite the installation of small wireless facilities and public rights of way. We're only talking about physically small boxes and main roads on existing utility poles, and that's really it. When none of that is true, three terms that always characterize hoodwink laws, small wireless facility right of way and co-location. They'll adopt the law which strips local governments of formal power than they wanted access to. For example, I'll give you a perfect example. Only applies to rights of way, right? What's the right of way? Right to way, by definition, includes areas on or around streets, roads, sidewalk alleys and public utility easements and similar properties.

Speaker1:
The very first time I had a case about nine years ago where they put a cell tower on somebody's front property, front lawn was because there was a public utility easement. Anyone who has electricity running to their house has a public utility easement on their private property. And using these hoodwink laws, they are putting cell tower and cell tower equipment on people's private property, on their front lawns, on the side lawns. It's a horror show. So x 50 does limit the powers to a certain extent, but it also says you can still adopt local laws which are not inconsistent with saying, now my ordinance is always have a savings provision that says if and to the extent this code conflicts with any state, federal or local law, that portion of the ordinance is invalid, but the rest remains in full force in effect. So yes, act 50 is is bad. It's not nearly as bad as many, many other states, but it's bad. But this doesn't stop you from adopting an ordinance which still. Empowers you to control where these things go.

Speaker4:
So even with 50, we can substantially improve this ordnance 100%.

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