Dalton Gardens Residents’ Wireless Ordinance

Verizon Frequencies/Bands/Channels in Northern Idaho, Feb 18, 2021

https://wireidaho.com/wireless-licenses & https://wireidaho.com/wtf-report-card

Andrew Campanelli, Esq. on Housatonic Live — Jan 28, 2021
Dalton Gardens mention on Housatonic Live — Feb 17, 20210


Key terms
    • DG = Town of Dalton Gardens
    • WTF = Wireless Telecommunications Facility
    • EMF = Electromagnetic Fields
    • RF-EMR = pulsed, data-modulated, Radio-frequency Electromagnetic Microwave Radiation
    • dBm = deciBel milliWatt a measure of Signal Strength

    DALTON GARDENS PLANNING & ZONING: Wireless Telecommunications Facilities (WTFs) Ordinance

    DG-PZ Version: Jan 28, 2021 (Draft 3 for Planning Commission hearing – January 28, 2021)

    DG-Resident Version: Feb 17, 2021

    AMENDMENTS TO MUNICIPAL CODE

    With additions and subtractions from the Dalton Gardens residents/members of WireIdaho — an edit that includes definitions from the 1996 Telecommunications Act (herein “1996-TCA”).
    With additions and subtractions from the Dalton Gardens Planning and Zoning Commission.
    S4WT: Comments and suggestions — Link.

    CITY OF DALTON GARDENS, IDAHO ORDINANCE NO. ___

    AN ORDINANCE OF THE CITY OF DALTON GARDENS, A MUNICIPAL CORPORATION OF THE STATE OF IDAHO;

    • AMENDING TITLE 5, CHAPTER 1, SECTION 4 TO ADD DEFINITIONS;
    • AMENDING TITLE 5, CHAPTER 3, SECTION 1 TO ADD A NEW ALLOWED USE TO THE COMMERCIAL DISTRICT AND TO CLARIFY REQUIREMENTS FOR A SPECIAL USE PERMIT;
    • AMENDING TITLE 5, CHAPTER 3, SECTION 14 TO DELETE WIRELESS COMMUNICATION FACILITY;
    • AMENDING TITLE 5, CHAPTER 4, SECTION 1 TO REVISE THE USES ALLOWED IN THE UTILITY DISTRICT;
    • AMENDING TITLE 5, CHAPTER 5, SECTION 1 TO ADD A NEW ALLOWED USE IN THE RESIDENTIAL DISTRICT;
    • AMENDING TITLE 5, CHAPTER 5, SECTION 2 TO CLARIFY USES WHICH REQUIRE A SPECIAL USE PERMIT;
    • AMENDING TITLE 5 TO ADD A NEW CHAPTER 13 FOR STANDARDS FOR SPECIFIC USES AND A NEW SECTION 1 TO SAID CHAPTER TO ADD STANDARDS FOR DISTRIBUTED ANTENNA SYSTEMS AND SMALL CELL WIRELESS COMMUNICATION FACILITIES, PROVIDING SEVERABILITY, REPEALING CONFLICTING PROVISIONS, AND PROVIDING AN EFFECTIVE DATE.
    Start DG-Resident addition

    Checklist for Municipal Codes for Wireless Telecommunications Facilities (WTFs)


    1. The Municipal Code requires each applicant to place substantial written evidence in the public record to establish that it has sufficient liability insurance coverage for the purpose and does not exclude claims for injury, illness, impairment or death from EMF or RF-EMR. The applicant must list its board of directors on the application, a copy of which, with its full insurance policy, shall be immediately placed by public officials in the public record.
    2. The Municipal Code requires each applicant to place in the public record substantial written evidence proving that a significant gap in telecommunications service exists in the proposed WTF’s desired target area (search ring) as a condition for approval of any WTF application; denial of the WTF application on the basis of lack of such gap does not constitute Effective Prohibition of Service, per US Code Title 47 §253 and §332.
    3. The Municipal Code requires each applicant to place in the public record substantial written evidence proving that the applicant has by thorough research sought to, and will, place the applied-for WTF in the least intrusive location: i.e., in a non-residential area, at sufficient distance from homes, schools, daycare and healthcare facilities, and parks; and that the applicant will achieve Signal Strength grades shown in Table 1, below.
    4. The Municipal Code requires that, in any area accessible to the general population, if any Carrier-specific, licensed frequency/band/channel already achieves a grade of ‘A’ or ‘B’ for Signal Strength in Table 1, below, this constitutes substantial written evidence proving NO NEED for any applied-for Carrier-specificWTF in said area.
    5. The Municipal Code requires each applicant to place in the public record substantial written evidence proving that the applicant has notified by certified mail all homeowners, leaseholders, residents, and businesses within 1,500 feet of the applied-for WTF.
    6. The Municipal Code requires each applicant to place in the public record substantial written evidence proving that the aggregate RF-EMR emissions from all existing and applied-for WTFs transmitting to the applied-for target area (search ring) of the applied-for WTF will not and cannot by future modification or other cause exceed FCC general-public RF-EMR emissions guidelines.
    7. The Municipal Code requires each applicant to place in the public record substantial written evidence in the form of a sworn, signed-and-dated statement testifying to the applicant-agent’s recognition that federal administrative rules are not laws, and that the applied-for WTF “does now and will continue to comply with all Federal Acts and their legislative purposes, said Acts including, but not limited to, the Communications Act of 1934 and its Amendments, the Telecommunications Act of 1996 and the 2012 Spectrum Act, the Americans with Disabilities Act (ADA), the Fair Housing Act (FHA) and its Amendment(s), the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA)”.
    8. The Municipal Code requires each applicant to place in the public record substantial written evidence proving that the applicant has completed NEPA and NHPA reviews for the applied-for WTF, per Federal Communications Commission (FCC) mandate, following the August 9, 2019 Ruling in Case 18-1129, Keetoowah et al v. FCC.
    9. The Municipal Code code requires that the municipality hire a certified RF-EMR engineer-consultant to conduct random, unannounced RF-EMR emissions testing of WTFs at the expense of the WTF operator, that it levy substantial financial penalties as specified in the application for first-time violation and loss of permit for subsequent violation, and that the operator sign by its agent within the application its agreement to the emissions testing expense and potential financial penalties and loss of permit for violations.
    10. The Municipal Code requires that each applicant post conspicuous signs noticing pending application at any and all applied-for sites.

    Table 1: Wireless Carrier Signal Strength Report Card

    (for any Carrier-specific licensed voice frequency)

    Grade Signal Strength Action
    A — Excellent -90 dBm to -125 dBm Approve
    B — Good -80 dBm to -89 dBm Approve
    C — Fair -70 dBm to -79 dBm Deny
    D — Poor -60 dBm to -69 dBm Deny
    F — Failing Exceeds -60 dBm Deny
    End DG-Resident addition

    SECTION 1: AMENDMENTS TO TITLE 5, CHAPTER 1, SECTION 4

    5-1-4: [PURPOSE, INTENT AND] DEFINITIONS:

    1. Purpose and Intent.

    The purpose of this Chapter is to regulate the placement, construction, modification, operations of personal wireless service facilities and other wireless antennas in the town of Dalton Gardens, ID (Hereinafter “DG”). The unrestricted construction of redundant personal wireless service facilities is contrary to the city’s efforts to do the following:

    • stabilize economic and social aspects of neighborhood environments
    • satisfy health, safety and aesthetic objectives,
    • maintain property values by not degrading the visual and economic value of adjoining properties, especially in residential areas, and
    • promote family environments and a residential character within the city

    . . . to the maximum extent allowed by law.

    Whereas, wireless services provide some benefit to individuals, businesses and the economy.

    Whereas, the construction and operation of the facilities and equipment associated with wireless services

    • results in aesthetic and visual blight,
    • reduces the value of adjacent properties,
    • creates public safety harms, especially to those who may have preexisting conditions exacerbated by exposure to wireless emissions or have been or will be directly sickened by exposure to wireless emissions,
    • presents economic and fiscal challenges to citizens and DG, and
    • gives rise to significant potential liability by DG.

    Whereas, Congress stated in Title 47 US Code §332(c)(7)(B)(iv):

    “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.”

    Whereas, Title 47 US Code §332(c)(7)(B)(i) states

    “The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof —

    (I) shall not unreasonably discriminate among providers of functionally equivalent services; and

    (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.”

    Whereas, Congress reserved DG’s right to regulate the “operation” of personal wireless service facilities under 47 USC 332, subject to limitations in other provisions of Title 47, USC.

    Whereas, the FCC has enacted various rules that purport to implement various provisions in the 1996 Telecommunications Communications Act (herin the “1996-TCA”). DG believes some of the FCC’s rules go beyond, violate or are not consistent with Congress’ intent fior the 1996-TCA and the relevant legislation, and many of those are presently subject to judicial review and may change.

    Whereas, there is ample scientific evidence, including US government studies, indicating adverse health effects from levels of radiation well below the FCC Radiofrequency (“RF”) emissions guidelines;

    • the World Health Organization’s International Agency for Research on Cancer (IARC) classified this RF-EMR as a Group 2B carcinogen;
    • in 2014, California Medical Association passed a resolution acknowledging that the science has shown profound adverse effects of wireless technology and called on the FCC to update its health regulations;
    • in 2018 the California Department of Public Health published guidelines admitting that peer reviewed scientific studies show evidence that wireless radiation may cause DNA damage, reproduction harms, cancer and learning disabilities among other effects; and
    • some residents of DG have already been injured by RF emissions within the allowed FCC RF emissions; and,
    • despite being fully apprised of these things the FCC’s present RF emissions rules are not biologically-based or sufficiently-protective of human or animal life or the environment.

    Whereas DG has traditionally had the power and duty to protect the health and safety of its residents and deliver actual public safety

    Whereas, DG reserves the right and intends to exercise its powers to protect its residents, its right to exercise all available power and right over its own property and regulate the use and occupation of that property, and to regulate land use to the maximum extent allowed by law, while nonetheless respecting and adhering to the law as it may be and may change as the result of judicial review, potential statutory changes by Congress or valid rule amendments by the FCC.

    In enacting this chapter, DG intends to:
    1. Promote and protect the quiet enjoyment of DG’s streets.
    2. Promote and protect the health, safety, comfort, convenience and general welfare of residents and business consisistent with DG’s Comprehensive Plan;
    3. Provide the benefits derived by DG, its residents and the general public from access to personal wireless services while minimizing their detriments;
    4. Balance these goals, by permitting the placement, construction, modification and operation of personal wireless facilities and other wireless infrastructure antennas where they are needed, while reducing adverse economic, health, safety and/or aesthetic impacts on nearby properties and the community as a whole; and
    5. Comply with applicable law, including the 1996 Telecommunications Act and state law. No provision shall be interpreted in a manner that violates state or federal law. Any provision found to be beyond DG’s power shall be severable, but subject to replacement or correction in a manner that is consistent with state and federal law.

    It is the intent of DG that no additional rights, vested interests or entitlements be conferred to place, construct, modify or operate personal wireless service facilities, other than those rights or entitlements mandated by applicable state or federal law and as to those only insofar as they continue to be required by state or federal law.

    This ordinance is intended to provide local standards and a process for evaluating the need for WTFs, a process for permitting needed WTFs, with an emphasis on assessing and minimizing any negative impacts from the placement, construction, modification and operations of any WTFs within the boundaries of Dalton Gardens, ID.

    The Ordinance will comply with

    • the Dalton Gardens Comprehensive Plan,
    • the 1934 Commmunications Act, as amended by the 1996 Telecommunications Act (herein “1996-TCA”) and by the 2012 Spectrum Act (herein “2012-SA”).
    • Idaho Public Utilities Commission Code
    • FCC Orders that are consistent with the underlying federal statutes (1996-TCA and 2012-SA)

    S4WT: Please Note the Following Basis Guiding This WTF Ordinance Edit:

    Wireless telecommunication facilities (WTFs), also known as personal wireless service facilities, are comprised of antennas and ancillary equipment that transmit electromagnetic power through-the-air for the provision of personal wireless services. Though convenient for everyday living and commerce, WTFs of any size or any “G”, can have adverse effects on the community, including, but not limited to public safety harms, privacy harms and property value harms.

    Note: “G” as in 2G, 3G, 4G, 5G are just fuzzy Wireless industry marketing terms for “generations” of pulsation, modulation, phase specifications for wireless transmissions. As such, any reference to any “G” is immaterial to this proposed ordinance. Instead, one should include in the ordinance the specific frequencies/bands/channels that are licensed for transmission into Dalton Gardens — Link.

    1. The 1996 Telecommunications Act (“1996-TCA”) allows narrow preemption of local authority (only for decisions over the placement, construction and modification) of Wireless Telecommunications Facilities (WTFs). There is no need to or advantage to changing the definition to Wireless Communications Facilities (WCFs). We have made that change throughout this edit of the proposed WTF ordinance.
    2. Similarly, it is best for Dalton Gardens’ to rely on the definitions in the 1996-TCA because there is need to or advantage to adding any new contradictory definitions.
    3. The Aug 2018 FCC Order 18-111 (the No Moratorim/One Touch Make Ready Order) and Sept 2018 FCC Order 18-133 (the Streamline so-called “small” Wireless Telecommunications Facilities (sWTFs) Order) are both presumptive orders (just a list of preferences) and not self-enforcing orders, as admitted by Scott Noveck, FCC Attorney who argued Case No. 18-72689 Local Govts. v FCC on Feb 10, 2020 in the US Court of Appeals, Ninth Circuit:
    Scott Noveck, FCC Attorney on Feb 10, 2020 → https://youtu.be/t_IMrAqwpNk?t=36m47s

    “The Order doesn’t purport to prevent localities from addressing reasonable aesthetic requirements. In fact we say in the small cell order that aesthetic requirements are permitted . . . a locality could say if a 50-foot pole would be out of character with the surrounding neighborhood, you can’t put up a 50 foot pole.”

    Scott Noveck, FCC Attorney on Feb 10, 2020 → https://youtu.be/t_IMrAqwpNk?t=53m15s

    “These small cells, though they have much less range than macro towers, they have a fair range.”

    Re: the FCC Order’s 18-133 proposed 60-day shot clocks, the Ninth Circuit judges wrote in the Case No. 18-72689 Ruling, Local Govt. v FCC:

    “It must be remembered that the ‘shot clock requirements create only presumptions’. As under the 2009 Order, if permit applicants seek an injunction to force a faster decision, local officials can show that additional time is necessary under the circumstances.”

    From the 1996 Telecommunications Act Conference Report:

    “If a request for placement of a personal wireless service facility involves a zoning variance or a public hearing or comment process, the time period for rendering a decision will be the usual period under such circumstances. It is not the intent of this provision to give preferential treatment to the personal wireless service industry in the processing of requests, or to subject their requests to any but the generally applicable time frames for zoning decision.”

    From the 2013 US Supreme Court Ruling in Arlington v FCC:

    In November 2009, the [FCC], relying on its broad statutory authority to implement the provisions of the Communications Act, issued a declaratory ruling responding to CTIA’s petition. In the Declaratory Ruling, 24 FCC Rcd. 13994, 14001 . . . A “reasonable period of time” under §332(c)(7)(B)(ii), the Commission determined, is presumptively (but rebuttably) 90 days to process a collocation application (that is, an application to place a new antenna on an existing tower) and 150 days to process all other applications. Id., at 14005.

    From the August 2020 9th Circuit Ruling in Local Govt. v FCC:

    We therefore hold that the FCC’s requirement in the Small Cell Order that aesthetic regulations be “no more burdensome” than regulations applied to other infrastructure deployment is contrary to the controlling statutory provision. See 47 U.S.C. §332(c)(7)(B)(i)(II).

    We also hold that the FCC’s requirement that all local aesthetic regulations be “objective” is not adequately explained and is therefore arbitrary and capricious.

    We therefore:

    • GRANT the petitions as to those requirements,
    • VACATE those portions of the rule and
    • REMAND them to the FCC.”
    From an October 2020 statement by Ms. Garnet Hanly, Division Chief of the Competition & Infrastructure Policy Division, FCC Wireless Telecommunications Bureau:

    “The FCC when it modified its rules [Title 47, C.F.R. § 1.1312(e) by its October 2019 Order that became effective on Dec 5, 2019], after the DC Circuit issued its mandate [in its Ruling of Case No. 18-1129 Keetoowah v FCC] we [the FCC] took the position that we were reviewing Small Wireless Facilities as [Federal] undertakings and major Federal actions, pursuant to the DC Circuit decision and that is what we’ve been doing.”

    S4WT: Please learn from Andrew Campanelli, Esq. (516-746-1600) the nation’s top Telecom attorney (7,000+ cases over 28-years, with an 80% success rate):

    FCC Order -18-133: (Sept 2018) Streamline Small Cell Deployment Order is only an interpretive, presumptive order; it is not a self-enforcing order. This means that it is only a statement of preferences and it cannot wipe out Ninth circuit case law.

    July 23, 2020 Attorney Andrew Campanelli — City Councils’ Hands Are Not Tied
    Feb 10, 2020 — FCC Attorney Scott Noveck: FCC Order 18-133 in Not a Self-Enforcing Order

    Attorney Andrew Campanelli at 30:29 in this July 23, 2020 video:

    “You are probably going to hear someone [on a City Council] say, ‘Oh no, we are preempted, our hands are tied.’ I hear that all the time.

    There is a [September 2018] interpretive Order [FCC 18-133] . . . which I think is ineffective . . . Federal courts — for twenty years — have interpreted the language in the Telecommunications Act that says when an effective prohibition occurs. These cases have gone up to the US Courts of Appeals for the 2nd Circuit and all the other Circuits.

    Federal judges are bound by these [No Significant Gap in Telecommunications Coverage and Least Intrusive Means] tests. So if some [company] wants to claim,

    ‘you [the City] must give us an approval, even if it violates your code because saying no would be an effective prohibition’,

    . . . and you [the City] says no, [the company] would have to file a law suit in Federal court and the Federal judges are bound by the Circuit Court Rulings which say an effective prohibition occurs when the company proves there is a signifcant gap and the proposed installation is the least intrusive means.

    The [company] can’t meet that test in the [densified 4G/]5G rollout, so the Wireless Industry went to the FCC and got them to issue a new “interpretive” Order [FCC 18-133] and here is what the Order says . . . after 24 years, we the FCC interpret that that effective prohibition language meaning that applicants don’t have to prove that there is a significant gap in service and they don’t have to prove — contrary to 20 years of Federal Court decisions — they don’t have to prove that their installation is the least intrusive means of remdying that gap. All they have to say is ‘they need this facility at the location they want at the height they want to either improve an existing service or to add a new service.’

    I don’t think that has any effect on a town’s ability because . . .

    1. The FCC can’t take away the powers preserved to towns by Congress — it wasn’t intended
    2. The FCC can’t wipe out twenty years of Federal judges’ interpretations
    3. The FCC can’t strip local governments of 20 years of local zoning regulations

    The Wireless industry is going from town to town, showing this [FCC 18-133] as gospel and the closest thing I have to a decision on this, so far, is one Federal judge in New York said and I’ll quote him:

    It is not up to the FCC to put words in the Telecommunications Act that aren’t there.’

    So, that’s why I think I am right. I know local towns still have the power to control the placement of Wireless Telecommunications Facilities (WTFs). To the extent an applicant says ‘You have to give [this permit] to us because of this [September 2018] interpretive Order’ — I don’t think the Order has any effect on the ability of towns to control the placement of Wireless Facilities at all.”

    Start long DG-Resident addition

    2. Definitions

    Incorporate Title 47 U.S. Code §153 Definitions

    (50) Telecommunications. The term “telecommunications” means the transmission, between or among points specified by the use, of information of the user’s choosing, without change in the form or content of the information as sent and received.
    (53) Telecommunications service. The term “telecommunications service” means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.
    (24) Information service. The term “information service” means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.
    (33) Mobile service. The term “mobile service” means a radio communication service carried on between mobile stations or receivers and land stations, and by mobile stations communicating among themselves, which includes

    (A) both one-way and two-way radio communication services,

    (B) a mobile service which provides a regularly interacting group of base, mobile, portable, and associated control and relay stations (whether licensed on an individual, cooperative, or multiple basis) for private one-way or two-way land mobile radio communications by eligible users over designated areas of operation, and

    (C) any service for which a license is required in a personal communications service established pursuant to the proceeding entitled “Amendment to the Commission’s Rules to Establish New Personal Communications Services” (GEN Docket No. 90–314; ET Docket No. 92–100), or any successor proceeding.

    (11) Common carrier: The term “common carrier” or “carrier” means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this chapter;

    (57) Transmission of energy by radio. The term “transmission of energy by radio” or “radio transmission of energy” includes both such transmission and all instrumentalities, facilities, and services incidental to such transmission.

    (40) Radio communication. The term “radio communication” or “communication by radio” means the transmission by radio of writing, signs, signals, pictures, and sounds of all kinds, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission.

    (59) Wire communication. The term “wire communication” or “communication by wire” means the transmission of writing, signs, signals, pictures, and sounds of all kinds by aid of wire, cable, or other like connection between the points of origin and reception of such transmission, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission.

    (42) Radio station. The term “radio station” or “station” means a station equipped to engage in radio communication or radio transmission of energy.

    (29) Land station. The term “land station” means a station, other than a mobile station, used for radio communication with mobile stations.

    (34) Mobile station. The term “mobile station” means a radio-communication station capable of being moved and which ordinarily does move.


    Incorporate Title 47 U.S. Code §324 Use of minimum power

    “In all circumstances . . . all radio stations, . . . shall use the minimum amount of power necessary to carry out the communication desired.”


    Incorporate Definitions from 1996-TCA and 1996-TCA Conference Report:

    “Communication desired” — Title 47 U.S.C. §324

    The term “communication desired” means means telecommunications service, as defined in 47 U.S. Code §153.

    Functionally equivalent services — 1996-TCA Conference Report

    “When utilizing the term ‘‘functionally equivalent services’’ the conferees are referring only to personal wireless services as defined in this section that directly compete against one another.”

    Personal wireless services — Title 47 U.S.C. § 332(c)(7)(C)(i)

    The term “personal wireless services” means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services;

    Commercial mobile service — Title 47 U.S.C. § 332(d)(1)

    The term “commercial mobile service” means any mobile service (as defined in section 153 of this title ) that is provided for profit and makes interconnected service available (A) to the public or (B) to such classes of eligible users as to be effectively available to a substantial portion of the public, as specified by regulation by the Commission.

    Unlicensed wireless service — Title 47 U.S.C. § 332(c)(7)(C)(iii)

    The term “unlicensed wireless service” means the offering of telecommunications services using duly authorized devices which do not require individual licenses, but does not mean the provision of direct-to-home satellite services (as defined in section 303(v) of this title ).

    Common carrier — Title 47 U.S.C. § 153(11)

    The term “common carrier” or “carrier” means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this chapter; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.

    Exchange access — Title 47 U.S.C. § 153(20)

    The term “exchange access” means the offering of access to telephone exchange services or facilities for the purpose of the origination or termination of telephone toll services.


    Incorporate Definitions from 2005 Ninth Circuit Court of Appeals Ruling in Metro-PCS vs. San Francisco:

    D. Prohibition Claim / 2. Service Gap

    (a) Definition of “Significant Gap:” Having considered both the avowed policy goals of the 1996-TCA and the practical implications of the various constructional options, we elect to follow the district court’s lead and formally adopt the First Circuit’s rule that a significant gap in service (and thus an effective prohibition of service) exists whenever a provider is prevented from filling a significant gap in its own service coverage.

    (b) Definition of “Least Intrusive Means:” The Second and Third Circuit “least intrusive” standard . . . allows for a meaningful comparison of alternative sites before the siting application process is needlessly repeated. It also gives providers an incentive to choose the least intrusive site in their first siting applications, and it promises to ultimately identify the best solution for the community, not merely the last one remaining after a series of application denials. For these reasons, we now adopt the “least intrusive means” standard and instruct the district court to apply this rule as necessary in its consideration of the prohibition issue.

    End long DG-Resident addition

    DISTRIBUTED ANTENNA SYSTEMS (DAS): A form of wireless communication facility consisting of a network of transceiver equipment at a central hub site to support multiple antenna locations throughout the desired coverage area.

    MACRO CELL: An antenna or antennas mounted on a tower, ground-based mast, rooftops and other towers or structures, at a height that provides a clear view over the surrounding buildings and terrain.

    UTILITY SUPPORT STRUCTURE: A freestanding structure that is used for supporting utilities, including, but not limited to electrical service and communications. Such structures may consist of a monopole, mast, lattice tower, utility pole, water tower, or other similar structures.

    WIRELESS TELECOMMUNICATION FACILITY (WTF): A staffed or unstaffed facility or location or equipment for the transmission or reception of radio frequency (RF) signals or other wireless communications or other signals for commercial communications purposes, typically consisting of one or more antennas or group of antennas, a tower or attachment support structure, transmission cables and other transmission equipment, and an equipment enclosure or cabinets, and including small cell technologies

    Wireless Telecommunications Facility (WTF): The term “Wireless Telecommunications Facility (WTF)” means any facility consisting of one or more antennas and ancillary equipment that together can transmit electromagnetic power through the air for the purpose of providing wireless telecommunications services or personal wireless services, as defined in Title 47 U.S. Code §332(a)(7)(C)(i): “commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services.” A WTF typically consists of one or more antennas or group of antennas, a tower or attachment support structure, transmission cables and other transmission equipment, and an equipment enclosure or cabinets.

    SMALL CELL: A form of wireless communication facility consisting of compact wireless equipment that contain their own transceiver equipment and function like cells in a wireless network but provide a smaller coverage area than traditional macrocells. Small cells shall not exceed 50 feet in height and shall have antennas that are less than 3 cubic feet in size.

    S4WT: Since the definition of a “Small Wireless Facility” in FCC Order 18-30 was vacated by the DC Circuit Court of Appeals, DC Circuit on August 9, 2019 (in the Ruling on Case 18-1129, Keetoowah et al. v FCC, for a “Small Wireless Facility” and was not subsequently properly-established in FCC Order 19-1024 in WT Docket No. 17-79, the FCC has no definition of a Small Wireless Telecommunications Facility (sWTF) and, therefore treats sWTFs as the same as WTFs of any size or any “G”. Accordingly, Ms. Garnet Hanly, Division Chief of the Competition & Infrastructure Policy Division, FCC Wireless Telecommunications Bureau clarified the following on Oct 19, 2020:

    “The FCC when it modified its rules [Title 47, C.F.R. §1.1312(e) by its October 2019 Order that became effective on Dec 5, 2019], after the DC Circuit issued its mandate [in its Ruling of Case No. 18-1129 Keetoowah v FCC] we took the position that we were reviewing Small Wireless Facilities as [Federal] undertakings and major Federal actions, pursuant to the DC Circuit decision and that is what we’ve been doing.”

    SECTION 2: AMENDMENTS TO TITLE 5, CHAPTER 3, SECTION 1, SUBSECTION B.2.

    5-3-1: USES
    B. Allowed Uses:
    2. Allowed Uses: See section 5-3-14, “Appendix 1 Activity Groups”, of this chapter for general description and definition of each use.
    Distributed antenna systems and small cell wireless communication facilities, in accordance with the standards in Section 5-13-1.

    S4WT: All WTFs will require special use or conditional use permits, including a full discretionary process: public notification, planning review and appeal process.

    4. Special Use Permits: See section 5-3-14, “Appendix 1 Activity Groups”, of this chapter for general description and definition of each use. A structure, site or parcel may have more than one special use permit. Each special use is considered a separate permit.

    Every Wireless Telecommunication facility, except distributed antenna systems and small cell wireless communication facilities. will require special use or conditional use permits, including a full discretionary process: public notification, planning review and appeal process.

    SECTION 3: AMEND TITLE 5, CHAPTER 3, SECTION 14

    5-3-14: APPENDIX 1: ACTIVITY GROUPS:
    Wireless [tele]communication facility (WCF WTF). Any facility designed and used for the purpose of transmitting, receiving, or relaying voice and data signals. WCFs WTFs include siting areas, transmission towers and antennas.

    Every Wireless Telecommunication Facility (WTF) of any size or any “G” is a facility designed and used for the purpose of transmitting, receiving, or relaying telecommunications service. WTFs include siting areas, transmission towers, support structures, antennas and ancillary equipment.

    SECTION 4: AMEND TITLE 5, CHAPTER 4, SECTION 1

    5-4-1 USE RESTRICTIONS:

    A. The utility district shall permit no land uses other than the following:

    1. Water infrastructure such as the maintenance of wells, pumps, pump houses, water tanks, pipes, and associated fencing, equipment and accessory structures or buildings, all of which must be compatible with one another.
    2. Electrical substations and associated fencing, equipment, accessory structures or buildings.
    3. Distributed antenna systems and small cell wireless communication facilities, in accordance with the standards in Section 5-13-1.

    SECTION 5: AMEND TITLE 5, CHAPTER 5, SECTION 1

    5-5-1: ALLOWED USES:

    [WTFs are allowed in Commercial zones only.]

    In Residential Zones, no building or land located therein shall be used for WTFS, nor any structure hereafter erected or altered. except for the following purposes:

    Distributed antenna systems and small cell wireless communication facilities, in accordance with the standards in Section 5-13-1.

    SECTION 6: AMEND TITLE 5, CHAPTER 5, SECTION 2

    5-5-2: SPECIAL USES:

    Public utility structures such as substations, pumping plants, telephone exchanges and similar uses.

    SECTION 7: AMEND TITLE 5, TO ADD A NEW CHAPTER 13

    CHAPTER 13 STANDARDS FOR SPECIFIC USES

    Start long DG-PZ addition
    5-13-1: STANDARDS FOR DISTRIBUTED ANTENNA SYSTEMS AND SMALL CELL WIRELESS COMMUNICATION FACILITIES

    A. Distributed antenna systems (DAS) and small cells are allowed in all [commercial] zones, provided the applicant complies with all Federal laws, including but not limited to the Americans with Disabilities Act, Fair Housing Act and National Policy Review Act, and all State laws and requirements.

    B. Distributed antenna systems and small cells located within city right-of-way are subject to approval of [special use, conditional use and] encroachment permits, licensing agreements, building permits and administrative [discretionary] review, as applicable for the circumstance.

    C. Distributed antenna systems and small cells located on private property are subject to administrative [discretionary] review and [special use, condtitional use and] building permit approvals. No private property shall host more than one antenna system.

    D. Installation of a distributed antenna system or small cell on an existing building or existing utility support structure shall not result in an increase in height greater than 15 feet higher than the existing building or utility support structure. Utility support structures may be replaced, but shall be no more than 15 feet higher than the previous structure which did not support a distributed antenna system or small cell.

    F. The antenna array shall be designed, placed and colored to blend into the architectural detail and coloring of the host structures. Support towers or poles shall be painted a non-reflective color that best allows it to blend into the surroundings. The use of grays, blues, greens, dark bronze, browns or other site-specific colors may be appropriate; however, each case should be evaluated individually.

    G. A single permit application may be used for multiple distributed antennas that are part of a larger overall DAS network. A single permit application may also be used for multiple small cells. A single license agreement may be used for multiple node locations in DAS and/or small cell networks.

    G. The City may charge the WTF applicant fees for the [Written Evidence — Wireless Antenna Need Test — In Telecommunications (WE-WANT-IT)] and for the [special use, conditional user and encroachment] permit reviews and/or use of City-owned right-of-way, in accordance with a duly-adopted fee schedule, to be determined.

    H. The WE-WANT-IT would require a Comprehensive Wireless Signal Strength Test to be conducted every six months by an independent RF Engineer, who will log, second-by-second, the Wireless signal-strength levels in dBm (decibel-milliWatts) of every carrier-specific licensed and unlicensed wireless frequency that is being transmitted to the streets of Dalton Gardens. The full data file for each WE-WANT-IT test will be placed in the public record of Dalton Gardenms for anyone to view, analyze and verify and will serve as the basis for local decisions, regarding:

    • the need for any additional Wireless infrastructure; and
    • the placement, construction, modification and operations of WTFs of Any G within the Dalton Gardens’ borders.

    The Cost for each WE-WANT-IT test would be paid by antenna operators on a prorated basis: the share of each Wireless Company’s antenna capabilities, meaning the percentage of the sum of the maximum Effective Radiated Power that could be transmitted by each antenna operating within the authority’s borders.

    In any area accessible to the general population, if any Carrier-specific licensed frequency/band/channel achieves a grade of ‘A’ or ‘B’ for Signal Strength, in the table, below then there is NO NEED for any additional Carrier-specific WTFs

    Grade

    Signal Strength

    Action

    A — Excellent -90 dBm to -125 dBm Approve
    B — Good -80 dBm to -89 dBm Approve
    C — Fair -70 dBm to -79 dBm Deny
    D — Poor -60 dBm to -69 dBm Deny
    F — Failing Exceeds -60 dBm Deny

    I. A written report will be prepared, signed and sealed by an [independent] Idaho-licensed professional engineer or a competent RF-EMR professional, [selected by DG, but paid for by] the WTF applicant. Each report will assess whether the proposed WTF demonstrates compliance with [Title 47 U.S.C §324 — Use of Minimum Power]. If the report is prepared by an employee of the applicant, who is not an Idaho-licensed professional engineer, the report must be accompanied by documentation establishing the employee’s competence to complete the report.

    J. Documentation from an Idaho-licensed professional engineer shall be submitted which shall demonstrate the proposed facility’s compliance with applicable Building Code standards, and describing the general structural capacity of the proposed facility, including the maximum number and type of devices that can be accommodated and the basis of the calculation of capacity. Additionally, a Non-Ionizing Electromagnetic Radiation Report demonstrating compliance with FCC regulations [the WTF does not exceed the minimum power needed for telecommunications services] shall also be submitted.

    K. Colocation of Facilities:

    1. Policy: It is the policy of the City to minimize the number of wireless communication support towers and to encourage the collocation of antenna arrays of more than one wireless communication service provider on a single support tower.
    2. Written consent to place DAS and small cell wireless facilities on utility poles and related infrastructure shall be submitted with the application to the City.
    3. [Collocation] consent shall be required and a written statement shall be signed by a person with the legal authority to bind the applicant and the project owner, which indicates whether the applicant is willing to allow other transmission equipment owned by others to [collocate] with the proposed wireless communication facility whenever technically and economically feasible and aesthetically desirable.

    L. Setback Requirements:

    1. Except for facilities which are collocated on the same structure, no DAS or small cell [no WTF] shall be located within 500 [1,500] feet of another DAS or small cell installation [WTF] .
    2. No DAS or small cell [WTF] shall be located within 30 [250] feet of a residence.
    3. [Setbacks will include adequate fall zones (ten feet greater than the height of the WTF) to prevent property damage due to severe weather event or other emergency]

    M. Compliance:

    1. All DAS and small cell facilities WTFs must comply with all standards and regulations of the FCC and any State or other Federal government agency with the authority to regulate wireless [tele]communication facilities, particularly Title 47 U.S. Code §324 Use of minimum power: “In all circumstances . . . all radio stations, . . . shall use the minimum amount of power necessary to carry out the communication desired.”
    2. DG must use an independent Professional Electrical Engineer and RF-EMR professional to determine the maximum input power allowed (“MIPA”), by considering three key parameters of the WTF: Vertical offset (# of feet off the ground of the lower edge of the lowest antenna), Horizontal offset (# of feet from the lower edge of the lowest antenna to an area accessible to people) and Power (the maximum allowed input power that would result in a signal strength ho higher than -85 dBm from the total of all Carrier-specific frequencies/bands/channels transmitted to any area accessible to people).
    3. DG shall monitor MIPA continuously by installing a corresponding DG-contolled fuse on each WTF and institute a three-strikes-and-your out program. DG will give each applicant three chances to comply with the MIPA defined by the Professional Electrical Engineer and RF-EMR professional in Section M(2) that will ensure signal strength ho higher than -85 dBm from the total of all Carrier-specific frequencies/bands/channels transmitted to any area accessible to people. Each replacement of the fuse will result in a policing fee charged to the applicant: $10,000 for first offense and fuse replacement, $20,000 for second offense and fuse replacement and $50,000 for third offense and permit loss.
    4. All graffiti on DAS and small cell facilities [WTFs] must be removed at the sole expense of the permittee after notification by the City to the owner/operator of the facility. The graffiti must be removed within fourteen (14) days after notification by the City.
    5. If any FCC, State or other governmental license or any other governmental approval to provide telecommunication services is ever revoked as to any site permitted or authorized by the City, the permittee must inform the City of the revocation within thirty (30) days of receiving notice of such revocation.

    N. Indemnification. Each permit issued for a DAS or small cell facility [WTF] located on City property shall be deemed to have as a condition of the permit a requirement that the applicant defend, indemnify and hold harmless the City and its officers, agents, employees, volunteers, and contractors from any and all liability, damages, or charges (including attorneys’ fees and expenses) arising out of claims, suits, demands, or causes of action as a result of the permit process, a granted permit, construction, erection, location, performance, operation, maintenance, repair, installation, replacement, removal, or restoration of the DAS or small cell.

    O. Insurance. Each permit issued for a DAS or small cell facility [WTF] located on City property [or in the public rights of way] shall procure and maintain [requires liability] insurance, [procured and maintained by the WTF operator from a third-party insurance company, not a self-insured indemnity substitute by the Telecom or franchise on the permit or license agreement. The liability insurance must not exclude claims for injury, illness or death from EMF or RF-EMR. The applicant must list its board of directors on the application and place a copy of the full insurance policy in the public record]. in the amount set forth in the Master License Agreement, but in no event less than the minimum amount provided by the Idaho Tort Claims Act, Idaho Code Section 6-901 et seq., and provide the City with a certificate of insurance on a standard insurance industry ACORD form or its equivalent. The insurance coverage required must be issued by an insurer licensed, authorized or permitted to transact business in the State of Idaho,

    P. Colocation of a DAS or sWTF on a Pre-Existing Structure that already has WTF antennas installed on it [in Commercial Zones]. For the mounting or installation of a DAS or sWTf on an existing tower, building or structure that already has WTF antennas installed on it for the purpose of transmitting and/or receiving radio frequency signals for [tele]communications [service]. For any building or structure that is occupied by residents or workers, the applicant must shield with metal or copper mesh the roof or walls to ensure that the RF-EMR from the antennas does not penetrate into the contiguous building or structure.

    1. Purpose: This section implements, in part, 47 USC section 332(c)(7) of the Federal Communications Act of 1934, as amended, as interpreted by the FCC in its Report and Order No. 18-133, and regulated by 47 CFR section 1.6003. Except when a shorter time frame is otherwise required under this chapter, The following time frames apply to collocation.

    2. Application Review:

    a. Application: The City shall prepare and make publicly available an application form, the requirements of which shall be limited to the information necessary for the City to consider whether an application is a colocation request.

    b. Review: Upon receipt of an application for a collocation request pursuant to this section, the City shall review such application, make its final decision to approve or disapprove the application, and advise the applicant in writing of its final decision.

    c. Timeframe For Review: Within sixty (60) days [ninety (90) days] of the date on which an applicant submits an application seeking approval of a colocation request — [at locations/facilities that already have WTF antennas installed] — under this section, the City shall review and act upon the application, subject to the tolling provisions below.

    d. Tolling Of The Timeframe For Review: The 60-day review period begins to run when the application is filed, and may be tolled only [when the City writes a letter to the applicant delineating the missing documents or information required in the application. or by mutual agreement between the City and the applicant].

    (1) To toll the timeframe for incompleteness, the City must provide written notice to the applicant within thirty (30) days of receipt of the application, specifically delineating all missing documents or information required in the application.

    (1) The timeframe for review begins running again when the applicant makes a supplemental submission in response to the City’s notice of incompleteness.

    (2) Following a supplemental submission, the City will notify the applicant within ten (10) [thirty (30)] days that the supplemental submission did not provide the information identified in the original notice delineating missing information. The timeframe is tolled in the case of second or subsequent notices pursuant to the procedures identified in this section. Second or subsequent notices of incompleteness may not specify missing documents or information that was not delineated in the original notice of incompleteness.

    e. Failure To Act: In the event the City fails to approve or deny a complete application under this section within the timeframe for review (accounting for any tolling) the request shall be deemed granted provided the applicant notifies the City in writing after the review period has expired, and the applicant shall be entitled to pursue all remedies under applicable law.

    Q. New DAS or sWTF that is NOT located on a pre-existing structure that already has WTF antennas installed on it [in Commercial Zones]. For the mounting or installation of a new DAS or sWTF on an existing tower, building or structure that DOES NOT already have WTF antennas installed on it for the purpose of transmitting and/or receiving radio frequency signals for [tele]communications [service]. For any building or structure that is occupied by residents or workers, the applicant must shield with metal or copper mesh the roof or walls to ensure that the RF-EMR from the antennas does not penetrate into the contiguous building or structure.

    1. Purpose: This section implements, in part, 47 USC section 332(c)(7) of the Federal Communications Act of 1934, as amended, as interpreted by the FCC in its Report and Order No. 18-133, and regulated by 47 CFR section 1.6003. Except when a shorter timeframe is otherwise required under this chapter, The following timeframes apply to building new DAS or sWTF structures.

    2. Application Review:

    a. Application: The City shall prepare and make publicly available an application form , the requirements of which shall be limited to the information necessary for the City to consider whether an application is a colocation request.

    b. Review: Upon receipt of an application for a colocation request pursuant to this section, the City shall review such application, make its final decision to approve or disapprove the application, and advise the applicant in writing of its final decision.

    c. Timeframe For Review: Within ninety (90) [One-hunred-fifty 150] days of the date on which an applicant submits an application seeking approval of a colocation new DAS or sWTF request under this section, the City shall review and act upon the application, subject to the tolling provisions below.

    d. Tolling Of The Timeframe For Review: The 90-day review period begins to run when the application is filed, and may be tolled only [when the City writes a letter to the applicant delineating the missing documents or information required in the application. or by mutual agreement between the City and the applicant].

    (1) To toll the timeframe for incompleteness, the City must provide written notice to the applicant within thirty (30) days of receipt of the application, specifically delineating all missing documents or information required in the application.

    (1) The timeframe for review begins running again when the applicant makes a supplemental submission in response to the City’s notice of incompleteness.

    (2) Following a supplemental submission, the City will notify the applicant within ten (10) [thirty (30)] days that the supplemental submission did not provide the information identified in the original notice delineating missing information. The timeframe is tolled in the case of second or subsequent notices pursuant to the procedures identified in this section. Second or subsequent notices of incompleteness may not specify missing documents or information that was not delineated in the original notice of incompleteness.

    e. Failure To Act: In the event the City fails to approve or deny a complete application under this section within the timeframe for review (accounting for any tolling) the request shall be deemed granted provided the applicant notifies the City in writing after the review period has expired, and the applicant shall be entitled to pursue all remedies under applicable law.

    R. Abandonment. Any DAS or sWTF that is not operated for a continuous period of twelve (12) [six (6)] months shall be considered abandoned, and the owner of such DAS or small cell shall so notify the City in writing and remove the same within ninety (90) days of giving notice to the City of such abandonment. Additionally, upon written notice from the City that the DAS or sWTF has been abandoned by the owner of such infrastructure for a continuous period of more than twelve (12) months, the owner shall remove the same within ninety (90) days. If the removal cannot be accomplished within this timeframe, the owner shall request an extension and provide a plan to remove the same and the associated timelines to accomplish the removal. Failure to remove an abandoned DAS or sWTF within said ninety (90) days shall be grounds to remove the DAS or sWTF at the owner’s expense, including all costs and attorneys’ fees. Irrespective of any agreement between the owner of a facility and the owner of a building or land upon which the facility is located to the contrary, they shall be jointly and severally responsible for the removal of abandoned unused facilities and the facility’s foundation, if any.

    END long DG-PZ addition

    SECTION 8. SEVERABILITY.

    If any provision of this chapter, or its application to any person or circumstances, be declared unconstitutional or invalid for any reason by a Court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this chapter or the application of the provisions to other persons or circumstances. Nothing in this chapter shall be construed as preventing the adoption of more restrictive provisions set forth in other sections of the Dalton Gardens Municipal Code. The more restrictive provisions of the code shall control.

    SECTION 9. REPEAL OF CONFLICTING PROVISIONS.

    All provisions of the ordinances of the City of Dalton Gardens which conflict with the provisions of this ordinance are hereby repealed to the extent of such conflict.

    SECTION 10. EFFECTIVE DATE.

    Upon passage and approval and publication in one (1) issue of the Coeur d’Alene Press, the official newspaper of the City of Dalton Gardens, Idaho, this Ordinance shall be in full force and effect.

    PASSED under suspension of the rules at which a roll call vote was taken at regular meeting of the city council of the City of Dalton Gardens, Kootenai County, Idaho, this _________day of _______, 2021.

    ATTEST:

    DAN EDWARDS, Mayor

    VALERIE ANDERSON, Clerk