Would OTARD apply in a scenario of a mesh AP/CPE antenna? ----- Original Message ----- From: "Joe Fiero" <[EMAIL PROTECTED]> To: "'WISPA General List'" <wireless@wispa.org> Sent: Tuesday, August 12, 2008 12:12 PM Subject: Re: [WISPA] Tower site licensing problem
> OTARD does not apply to any commercial usage. It will apply to a > commercial > end user, but not a system operator. > > Statutes that apply to HAM operators are just that, for HAM operators. > Certainly you could make a claim, but that's about the same as saying you > garage your car in another state to save on insurance premiums. It's not > an > issue until it becomes one. Then you have one heck of a mess to clean up. > > Joe > > > > -----Original Message----- > From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On > Behalf Of Chuck McCown - 3 > Sent: Tuesday, August 12, 2008 10:44 AM > To: WISPA General List > Subject: Re: [WISPA] Tower site licensing problem > > There are two parts of the telecom act, OTARD and the Ham ruling that > "should " be able to be used to mitigate most of this. Especially of the > city attorney doesn't want to do much research. OTARD and the Ham ruling > could probably combat the visual impact aspect. I have successfully used > the competitive nature of the tower they want me to collocate on to argue > that it would give my competitor an advantage over me. Hard to argue that > one down. > > ----- Original Message ----- > From: "Blake Bowers" <[EMAIL PROTECTED]> > To: "WISPA General List" <wireless@wispa.org> > Sent: Tuesday, August 12, 2008 8:36 AM > Subject: Re: [WISPA] Tower site licensing problem > > >> Actually, visual impact CAN be applied. Lambs >> Knoll MD is a good example of a recent application >> where the tower company lost. >> >> A municipality can heavily regulate tower placement, >> and if they show that another site without that >> visual impact, or even multiple sites without that >> visual impact can do the same job, then the site >> with the visual impact can be legally denied. >> >> The federal rules about siting state that the municipality >> cannot capriciously or unreasonably deny an >> application, but the definition of unreasonably has still >> never been clarified. >> >> Insofar as the "taking" of a tower, only allowing towers >> that are capable and available for colocation is accepted >> as a standard codes restriction, and has >> been backed up in the court. Having the municipality >> become the leasing agent has not however. >> >> They can also DENY your application to build a tower >> if suitable colocation oppurtunity exists on existing structures, >> leaving the onus on you to show why that won't work, and >> a financial argument won't stand up. >> >> Case in point, >> >> http://tinyurl.com/5clfkt >> >> >> >> Don't take your organs to heaven, >> heaven knows we need them down here! >> Be an organ donor, sign your donor card today. >> >> ----- Original Message ----- >> From: "Chuck McCown - 3" <[EMAIL PROTECTED]> >> To: "WISPA General List" <wireless@wispa.org> >> Sent: Tuesday, August 12, 2008 8:51 AM >> Subject: Re: [WISPA] Tower site licensing problem >> >> >>> You gotta get a better lawyer. Some of this stuff, especially RF >>> emissions >>> are federally regulated and wholly prempts local officials. It is >>> actually >>> easier if you call your facility cellular like in most cases because >>> federal >>> code can get most of this off your back. The building code/engineering >>> folks will still require soils analysis and structural engineering but >>> much >>> of the other stuff including visual impacts cannot be applied. >>> >>> ----- Original Message ----- >>> From: "Joe Fiero" <[EMAIL PROTECTED]> >>> To: "'WISPA General List'" <wireless@wispa.org> >>> Sent: Tuesday, August 12, 2008 7:30 AM >>> Subject: Re: [WISPA] Tower site licensing problem >>> >>> >>>> My first question is, where is this taking place? >>>> >>>> I ran into this in one market just recently, but it was the first time >>>> we >>>> had been classified as a "telecommunications facility", and been >>>> require >>>> to >>>> go through the extensive permitting process. >>>> >>>> The requirements we faced were above and beyond anything I had >>>> experienced >>>> in 35 years in the wireless industry. There was always a distinction >>>> made >>>> between a single use site and a leased telecom facility. That seems to >>>> be >>>> coming to a close as the billion dollar mergers between the tower >>>> giants >>>> act >>>> as a catalyst driving these municipalities to score what they perceive >>>> as >>>> their piece of the pie. >>>> >>>> In this new world order everyone gets to "eat". And we are the ones >>>> they >>>> expect to provide the meals. >>>> >>>> First off we were faced with a $8500 escrow account which the >>>> municipality >>>> could use any way they deem necessary and proper to facilitate the >>>> permitting process. That includes paying for their engineers, lawyers, >>>> or >>>> any other costs they incur for "experts" to testify at our hearings. >>>> >>>> As they depleted this fund we would be notified when the balance fell >>>> below >>>> $2500 and then required to replenish the funds within 5 business days. >>>> That >>>> was in addition to the $5000 non-refundable permit fee for a new >>>> facility, >>>> or a $2500 fee for an existing facility. It also had nothing to do >>>> with >>>> building or construction permits. >>>> >>>> After the permit was granted, we were still required to maintain at >>>> least >>>> $2500 in this escrow account so the municipality would have available >>>> funds >>>> to, at their discretion, order future inspections and studies to assure >>>> our >>>> continued compliance. This was arbitrary, and completely at their >>>> discretion. Effectively, they could spend our money any time they wish >>>> and >>>> there was no means to appeal the action. >>>> >>>> All this hooplah over a 70 foot free standing tower that was being >>>> placed >>>> on >>>> a hill 3/4 miles outside of town on more than an acre of property that >>>> we >>>> were buying for the purpose of placing this tower on it. >>>> >>>> Additional requirements included mandatory core sampling to ascertain >>>> the >>>> quality of the soil and assure it is sound enough to support a >>>> structure, >>>> A >>>> visual impact study that includes floating a balloon and taking photos >>>> of >>>> it, coordinated with a map by GPS points, that required no less than 58 >>>> photos be taken. >>>> >>>> In addition to the municipal engineer, we had to provide our own >>>> engineering >>>> report. The fact that the tower was available stamped was not good >>>> enough. >>>> It had to be a local engineer who told us he would do his best to keep >>>> his >>>> fees as close to $10,000 as possible. >>>> >>>> They wanted the engineering to cover the foundation, structure, each >>>> antenna >>>> both current use and planned, road design, secondary egress, RF >>>> emissions, >>>> and even an environmental impact study on the area we would disturb to >>>> place >>>> the tower. This was to include a foliage replacement and erosion >>>> control >>>> plan. >>>> >>>> Mostly, this tower was being sited to use unlicensed spectrum and up >>>> until >>>> now I never came across a telecom ordinance that specifically included >>>> that >>>> spectrum. In most cases they specify by stating something like >>>> "cellular, >>>> SMR, paging, broadcast", or some other specific descriptors. >>>> >>>> One of the most disturbing aspects of this was that we had no control >>>> over >>>> who used the tower when we were done. The ordinance specifically calls >>>> for >>>> us to build the facility for collocation and gives the municipality the >>>> right to determine who collocates and what their "fair value" is for >>>> collocation. There was nothing preventing the mayor's son from setting >>>> up >>>> a >>>> LPTV station, or a competitive WISP, and requiring us to house his >>>> operation >>>> at our site for $10 per month. >>>> >>>> You are 100% correct. This new generation of ordinances for telecom >>>> facilities make no distinction between the mom and pop garage or feed >>>> store >>>> that wants to put up a 50 foot tower for his 2-way to his trucks, a >>>> WISP, >>>> or >>>> a large telecom facility being sited by a nationwide service or >>>> operator. >>>> >>>> In fact, this particular ordinance did not apply to just towers. It >>>> included any placement of any radiating device in any spectrum. That >>>> means >>>> if you deploy a mesh network in this town you are required to obtain >>>> permits >>>> for each and every node you place. >>>> >>>> With respect to OTARD, I have had quite a bit of experience with it >>>> over >>>> the >>>> years. I have challenged CC&R's from condos and townhomes as well as >>>> township ordinances for anything from yagi antennas for 2-way clients >>>> to >>>> reach a repeater, to 10 foot satellite dishes, to DBS and even >>>> satellite >>>> Internet services. Each was successfully resolved because of the >>>> strength >>>> of OTARD. >>>> >>>> However, OTARD does nothing for you and I as the operator of a >>>> commercial >>>> antenna, no matter it's size or intent. OTARD applies only to the end >>>> user. >>>> >>>> Now that this has reared its ugly head for the second time to me I see >>>> a >>>> trend. We solved the issue by not building in that location. We moved >>>> outside of town and received a county level permit with no questions >>>> asked. >>>> >>>> For the record, this was not NY, Chicago or LA. It was a small town of >>>> less >>>> than 4000 on the Ohio River that covers less than 1.2 square miles of >>>> land. >>>> >>>> I think we, as a group, need to be proactive in this area before we are >>>> shut >>>> out of locations. Even existing sites could become untouchable with >>>> exorbitant fees and unduly restrictive requirements. It may be time to >>>> approach the FCC, in conjunction with other industries such as 2-way >>>> radio >>>> retailers, to assure that low impact telecommunications facilities are >>>> not >>>> painted with the same brush as the monoliths built by the cellular >>>> companies. >>>> >>>> >>>> >>>> Joe >>>> >>>> Joe Fiero >>>> CEO >>>> >>>> NuTel Broadband Corporation >>>> 769 Basque Way Suite 650 >>>> Carson City, Nevada 89706 >>>> >>>> Direct-732-364-4161 >>>> >>>> [EMAIL PROTECTED] >>>> >>>> -----Original Message----- >>>> From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On >>>> Behalf Of Isp Operator >>>> Sent: Tuesday, August 12, 2008 6:38 AM >>>> To: wireless@wispa.org >>>> Subject: [WISPA] Tower site liscensing problem >>>> >>>> Hi Gang, >>>> >>>> We recently received notice that one of our locations has received the >>>> interest of our county planning department, who has determined that the >>>> location requires a 'use permit' for a major impact utility location >>>> (eg: Cellular telephone). Naturally, we strongly disagree with this >>>> determination. >>>> >>>> The site is in a remote location, on private property completely out of >>>> view of anybody(*), solar powered, on a 25' mast, with only the most >>>> basic of equipment installed including two access points with an omni >>>> and a sector. Aside from being 'outdoors', really, there's no >>>> resemblance to a 'cellphone tower' as the gear is equivalent to what >>>> most people use for their home wireless networks, albeit with slightly >>>> larger externally mounted antennas. The planning department DID NOT >>>> cite >>>> any building codes or height restrictions, just that we seem to be >>>> 'transmitting' as well as 'receiving', and we're certain that the >>>> determination has to do ONLY with the fact that it's a wireless >>>> repeater >>>> and otherwise wouldn't receive any attention at all if it was a wind >>>> generator, weather station or other application. >>>> >>>> The substantial weight of the use permit process they wish us to go >>>> thru >>>> is exactly that for a major cellphone site, complete with hefty >>>> application fees, public hearings, zoning approvals, and the whole nine >>>> yards. Assuming we made it all the way thru the process, we would then >>>> also be required to build it up with severe site upgrades including >>>> fire >>>> access and other features, which is simply too much overkill and we >>>> would not be able to comply. >>>> >>>> Isn't there some kind of exemption or otard-similar ruling or legal >>>> guidelines from the fcc regarding this type of situation? I can only >>>> imagine that the criteria cited would also apply to many, many other >>>> uses of part-15 devices and that the regulations just predate (2001 in >>>> our case) the real onslaught of linksys in every home. I also imagine >>>> that there would be substantial damage if every wisp was required to >>>> get >>>> cellphone tower permits for every single repeater in use according to >>>> these strict interpretations. We're going to need more than common >>>> sense >>>> here, we're going to need legal precedence or references to directly >>>> refute this determination, and we would appreciate your help. >>>> >>>> Thanks all. >>>> >>>> >>>> (* We were turned in by a certain tin hat, who has been dogging us for >>>> some time now and attempting to create sympathy for their extreme views >>>> which we are sure you all are aware of. Just one more reason to not >>>> share detailed system information with anybody....) >>>> >>>> >>>> >>>> > ---------------------------------------------------------------------------- >>>> ---- >>>> WISPA Wants You! 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