Tensions Brew at Planning Board Meeting Over NextG DAS Proposal

At a May 7th work session of the Scarsdale Planning Board tension was clear between village residents and NextG, a company that plans to put up telecommunication antennas throughout Scarsdale. The antennas, called DAS, can be rented out to up to three cell-phone companies in order to improve their service. NextG, now owned by Crown Castle, classifies its work as a utility and demands the same consideration as any other utility. However, in order to put up DAS in Scarsdale, it would be necessary for the board to change the zoning laws that mandate a 350 ft distance for any cell-phone antenna from any residential structure (For background information, click here and also read a letter from a concerned resident here.)

In order to better understand and deal with the issues facing the town, the board took Greenburgh’s lead and hired an attorney, Joseph Van Eaton, a partner at DC based firm Best Best and Krieger, who specializes in telecommunications cases and has handled disputes with NextG/Crown Castle in the past (Greenburgh hired Andrew D. H. Rau, of the law firm of Unruh Turner Burke & Frees). After planning board chair Jane Veron began the meeting, Van Eaton gave a presentation on the legal issues that any changes or refusals to change in zoning would have to deal with. The first federal law that he mentioned, 47 USC 253, states that local governments may not stop telecommunications expansion on a discriminatory basis. Since NextG considers itself a utility, this means that if the board is to bar their expansion, it cannot be for any reason specific to the telecommunications aspect but must be applicable to any utility placed in the right-of-way (public areas of transportation).

The second law that he considered was HR 3630 Section 6409, that states that a locality must accept any modification of any existing wireless tower, collocation, or base station as long as the physical dimensions are not substantially changed. The main difficulty with this law is that none of the terms within, tower, collocation, base station, physical dimensions, or substantial, are defined. NextG could attempt to say that affixing their antenna to existing utility towers would simply be a modification, so the board would have to allow it. However, considering none of the words are defined, it is quite possible that they would still not meet the requirements.

The third law was 47 USC Section 332(c)(7), which gives localities control over the placement and modification of antennas, although this control cannot prohibit the filling of a significant gap in a wireless provider’s service, nor be based on fears of radio frequency as long as the FCC allows them. This law creates the greatest cause of concern. First, many residents do have problems with the concept of radio emissions so close to their homes. It was clear, especially when NextG’s expert, Dan Collins of Pinnacle Telecom Group, was explaining that DAS towers actually have significantly lower emissions than the bigger towers and that radio emissions are not even detectable over 15 feet, way under the FCC levels, that tensions were high. While he was speaking, muttering could be heard from residents on how that could not possibly be true. Moreover, in the later Q&A, three different residents asked why the initial 350 ft rule had been put in place in 1998, pointing to concerns about radiation. So, the fact that the board is not allowed to change policy based on this present concern is critical. Second, that the board cannot prohibit the filling of a significant gap in a wireless provider’s service created conflict due to its vagueness. How is a significant gap decided? By the provider or by the consumers?

Next Van Eaton noted the reason for any possible DAS expansion. Cell-phone usage is at an all time high and shows no signs of shrinking. More antennas will be needed in the future and choices will have to be made. Does Scarsdale want a few large telephone towers or a bunch of DAS systems. His presentation ended with some follow-up questions from the board and a note by Veron that the planning board would not make any specific decisions on placement or take any actions but would solely make a recommendation to the village board. With that, the floor was opened up for questions.

Wynmor Road residents Margerie Rosenblatt and Jon Thaler had previously circulated flyers, urging residents who lived near a proposed DAS to come to the meeting. Therefore, the room was filled with concerned residents, ready to learn more. One main question that surfaced continually was that of proving that there is no significant gap. Although residents noted that either a) they do not find any gaps in their Verizon or AT&T service or that b) they have no desire to have such gaps filled, Van Eaton pointed out that a court would have to decide and NextG representative Peter Heimdahl affirmed that although resident’s might not feel a significant gap, NextG’s client Metro PCS certainly felt like they had a gap in the area. This further brought into question whether the significant gap was from the customer or the provider’s perspective. Residents pointed out that they do not need Metro PCS since Verizon and AT&T already work and Metro PCS has no clients in the village. But Heimdahl argued that that was not a reason to prohibit competition and that it was impossible to get initial clients without first having service in an area.

A second frequently asked question was why we even have to change the current law. Van Eaton noted that the current law did not account for DAS since when it was created in 2002, DAS did not exist. Moreover, the law could be considered discriminatory against telecommunications and NextG could sue the town. If NextG could show in court that significant gaps were created by our law, a win for them in court would create even worse circumstances for the town than if it just abridges the zoning codes to cut out specific types and locations of DAS.

Another common question was why Metro PCS even needs DAS. First, NextG has also put up DAS in White Plains, and New Rochelle. In both cities, which are larger than Scarsdale, NextG put in only 8-12 DAS while they plan to put up 15 in the village. Why are so many necessary? Heimdahl stated that the area doesn’t necessarily matter as much as topography and current reception but did not flesh out the point much. Second, if Verizon and AT&T already get reception, why can Metro PCS not rent space on their larger antennas? Van Eaton noted that this could be very expensive and might cause large modifications. However, residents stuck to this issue and made a very valid point. Why is it our job to make their lives easier just because another way might be a bit more expensive?

A last question pointed out the presence of NextG representatives, the possible plaintiff in a lawsuit, at the meeting. One resident asked if it would be possible to not invite them next time, and others chimed in that the meeting could just be word of mouth style and the public could not be notified. However, the village attorney quickly pointed out that due to state laws that would be very illegal. Moreover, NextG were not plaintiffs yet. However, the fact that the question was asked shows that the residents do not plan to give in easily. This conflict will be a long fight, one that is completely undecided as of yet.

This article was contributed by SHS Senior Zach Edelman who is working at Scarsdale10583.com during Senior Options.