HOUSE OF REPRESENTATIVES. COMMONWEALTH OF PENNSYLVANIA

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House Resolution 111

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House Subcommittee on Telecommunications

Monroeville Public Library 2615 Mosside Boulevard Monroeville, Pennsylvania

Tuesday, September 9, 1997 - 1:30 p.m.

—oOo— BEFORE: Honorable Paul Sentinel, Majority Chairman Honorable Ronald Buxton, Minority Chairman Honorable Anthony Colaizzo

ALSO PRESENT: Honorable William Lloyd June Perry Majority Executive Director Mary Keenan Minority Executive Director Linda Farling Administrative Assistant to Representative Buxton

KEY REPORTERS 1300 Garrison Drive, York, PA 17404 (717) 764-7801 Fax (717) 764-6367 CONTENTS WITNESSES PAGE Opening remarks Honorable Paul Semmel 3 Kathy Kennedy, Library Director 3 Library Joel Reinbold, Executive Director 6 Connecticut Siting Council PA Department of Transportation Craig Hornberger, Sr. Air Specialist 45 Jerry Gromlowicz 5 6 Paul Rubenstein 60 Independent Consultant Joseph Fitzpatrick, Jr., Esquire 98 PA Wireless Carriers Coalition Fitzpatrick, Lentz & Bubba, P.C.

Blaine Lucas, Esquire 151 Mollica & Murray CHAIRMAN SEMMEL: The hour of 1:30, we'll do some of the informal things. At this time I'd like to thank Kathy Kennedy, the library director here who arranged with June Perry for us being here today. We say thank you. If you would want to give us a little bit of a commercial for this public facility, do so. Thank you.

MS. KENNEDY: My commercial will consist of telling you this would not normally be where you would be for a meeting. I don't know how many of you heard about the rains that came through here of July 1st. Everyone has heard of Pitcairn being affected. But guess what? We were too. In our basement offices, which is our nerve center of the library, the computer room and a lot of the other technical processing offices were flooded down there from rain coming in faster than ever. It came into the front door and even went into part of our carpeting here, so we had a bit of a mess too.

So, our offices had to be moved to our meeting room, which is downstairs and cooler. That's where we normally have our groups meet. We have had to put groups up here in different corners of the library upstairs until that's fixed. Hopefully, this month we'll get back to normal. CHAIRMAN SEMMEL: Your service area would be — MS. KENNEDY: Monroeville and Pitcairn. And also because we have some of the regional asset district funding in Allegheny County, we do serve people that live in Allegheny County. Nonresident we still charge a nonresident fee, but our service area you could say would be Allegheny County at this point. Every month we have a different artist in here. This month it's a photographer. We have artists every month have a reception. We have a reception and they meet the people. It's a very nice feature of the library too. It kind of mixes the art and folk world together. We are happy to have you and hope you have a good afternoon and tomorrow morning too, right? CHAIRMAN SEMMEL: Exactly. Thank you again.

! MS. KENNEDY: You're welcome. CHAIRMAN SEMMEL: With this I guess we'll start the introductions. Since we know Mary is the last one I believe scheduled to arrive, maybe you can acknowledge just for the record. MS. KEENAN: Mary Keenan, Democratic Director of the committee. REPRESENTATIVE COLAIZZO: Anthony Colaizzo, representing Washington County 48th District. REPRESENTATIVE LLOYD: Bill Lloyd, Somerset County. MS. PERRY: June Perry, Republican Executive Director. MS. FARLIN6: Linda Farling, Administrative Assistant for Representative Buxton. REPRESENTATIVE BUXTON: Representative Buxton, Dauphin County. CHAIRMAN SEMMEL: Representative Sentinel, Lehigh and Berks Counties. With that, good afternoon. I'd like to take this opportunity to welcome you here today for the Subcommittee on Telecommunications final hearing pursuant to House Resolution 111. The Subcommittee on Telecommunications of the House Committee on Consumer Affairs will now come to order. For those of you who do not know, the subcommittee has been directed by passage of House Resolution 111 to investigate all aspects of cellular transmission antennas and to report its findings and recommendations to the House of Representatives no later than September 30th of this year. We are here today to pursue that mission. With that, at this time we'll call on Mr. Joel M. Reinbold, Executive Director, Connecticut Siting Council. MR. REINBOLD: Thank you, sir. My name is Joel Reinbold. I am Executive Director of the Connecticut Siting Council, Connecticut State Agency. I have been director for several years. I have worked with the council for approximately 15 years. Prior to that I was district manager for the United States Department of Agriculture. I also teach at the Connecticut State University System. My written testimony today that I have passed out includes procedures, guides, outlines. I have statutes and regulations with me. I've only brought one copy. They are available on the Internet. I can make written copies available at your request. I will today provide a brief description of the council's jurisdiction, a model of regulation that the council uses to regulate wireless facilities, our goals, our decision standards, examples of technical analysis, an outline showing consistency with the Telecommunications Act of 1996, common elements of a decision, and examples of the paradigm change from high-level wireless facilities to low-level wireless facilities.

I will then provide a conclusion, giving some of my viewpoints on the model of state regulation of telecommunication facilities. I would also like to add that I'm delighted and honored to be here to help the State of Pennsylvania today. With that, I have some slides, overlays. The first and foremost thing that we try to recognize is, you are not the only state out there who is faced with this situation. It's a national problem and several other states have consulted me and asked for recommendations. The jurisdiction of the Connecticut Siting Council is for community access, television, state-owned and operated facilities, public service companies as the utilities, intrastate services and cellular as defined by the FCC. We also have a role in tower sharing. The electromagnetic spectrum is finite. It's been carved up. There will be other facilities; there will be other frequencies. There will be other licenses. The jurisdiction that we have in my estimation is relatively small compared to what is out there.

REPRESENTATIVE BUXTON: What's that microwave oven representing? MR. REINBOLD: This is the electromagnetic spectrum. This demonstrates frequencies from which these facilities operate. A microwave oven is somewhere between 915 and 2450 megahertz. It's a transmitter.

j IO g g cellular telephone facilities since 1984. The reason why we have jurisdiction over cellular telephone is because it's a network-based system; a system that uses low-power transmitters that require cell handoff and frequency reuse. The service area can became saturated. The idea behind it is to provide seamless coverage. Consequently, these facilities may have effects that transcend municipal boundaries and their need may transcend municipal boundaries. That's precisely why the State of Connecticut has taken a jurisdiction for the regulation of these facilities in a centralized manner. Our goals, State of Connecticut's goals, for the siting of these facilities is first to protect: the community, public health, welfare and environmental resources. We also want to protect the industry. We are looking for a superior telecommunications network both for the telecommunications industry and for the industry that's served by improved communications. Public safety, public convenience are also important goals to protect. We are also pleased that competition has provided innovative technology, lowered the price of service and improved quality. Our decision standard is based on a balancing of need with effects; the need for a particular facility at a particular site against the environmental and community effects that would or may occur from the siting of that facility. Our decisions are in writing based on evidence and they are substantiated at public hearings. The process that we use for a new tower is to require preapplication consultation with municipalities before an application is even filed with us. We want this application to go to the municipality for some informal comment. It can and often is formalized during our proceeding, but we want to have the municipality involved right from the beginning in the process. We require application in service to public officials both state and local. Notice of the application is in the local newspaper. Abutting property owners are also served notice. There's a public site inspection. The hearing is held in the site municipality, site community. The hearings are somewhat formalized with the submittal and cross- examination of all evidences by parties and intervenors. There's also opportunity for members of the public who are not parties or intervenors to make comment into the record. After the public hearing there's an opportunity for members of the public and parties and intervenors to review the transcripts, submit additional comments, propose decisions, memorandum of law and legal briefs. The council deliberates after the close of the record and makes its decision in writing. Other administrative processes that the council uses in an attempt to streamline the regulatory decision-making process for these facilities is to allow regulatory exemptions for placement of antennas on existing towers when the tower height, boundaries and noise levels are unaffected and radiofreguency power density standards are complied with. That process can take as little as two weeks. It's streamlining to encourage the use of existing facilities. Tower sharing is also a streamlined process where certain changes to existing sites can be made on a showing of technical, legal, environmental economic feasibility and a showing that public safety concerns are addressed. This process may take 2 to 4 weeks; again, very much streamlined to encourage use of existing facilities rather the development of new ones.

Again, our decision standard is an organic standard to balance public need with environmental effects. This is a public need for a facility at a particular location. We do not make a determination of need for the industry. That's been preempted by the FCC. Question may come, how do you determine public need? What we do is assess coverage, signal strength, alternatives and multiple use. Coverage is assessed through capacity and propagation analysis. Signal strength is assessed through propagation analysis. Alternatives are assessed through a site selection analysis, and multiple use or combined share use of a facility is assessed through antenna separation analysis. Propagation analysis would look something like this. This shows existing facilities, different signal strengthens, both a negative 75 DBM and negative 90 DBM, coverage from each of the existing facilities, transportation network, roads, and areas without coverage. Through this analysis we can determine where new facilities can and should be located, at what height, and how many. For example, this analysis may determine whether three small towers or small facilities should be located to fill these three holes or one large one or two small ones with a repeater based on existing conditions and signal strength. This is an analysis that was just decided a month ago. Our analyses are documented, manifested in tabular form to show existing coverage and proposed propagation, both from routes, transportation network; at different coverage levels, at different locations and at different height towers, both covered miles and uncovered miles. We would assess this for a particular user, and then do it again for other potential users. The idea behind it is, we are going to site a facility, let's get as many carriers on that tower as we can. Let's assess it now while we are going through the process, so that when siting is being undertaken, we can have some confidence that the industry will be served and the public will not be misled and that a new tower will be needed in a short time in the future. With shared use we also consider minimum antenna separation distances. It's a function of wavelength, frequency wavelength. These tower can get pretty complicated. The limiting factors are structural stability of the tower and the minimum separation distances between the transmitting antennas which may or may not cause interference. This is modeled so you know who and what can go on these towers and at what heights. If one of the carriers requires a point-to-point microwave system, which is often the case with public safety, say, for example, your state police, we will model point-to-point microwave paths to determine the heights of dishes. We will always model public safety agencies into a tower when undertaking a siting review, both state and local level; for example, the local and state police. We assess the other side of our decision standard, community and environmental effects through an analysis of ecology, scenic resources, health and land use. Ecological assessment is performed by traditional environmental analysis, not forgetting that these towers also have access roads and the access road always has to be analyzed. Scenic resources are often the limiting factor for members of the public. They want to know where and how this facility will be viewed. We do this through profile analyzes, balloon simulation, photographic simulation. Health is assessed through worst-case radiofreguency power density modeling. We don't make up the standard. I think the federal standards, the FCC standards are fair. I can't see any reason why Connecticut should have a different standard than California or Pennsylvania. What I do believe is important is that, a demonstration that a particular facility will meet these standards be provided to the public, especially with tower sharing where you would have multiple carriers on one tower with combined power densities. We'll also analyze land use in a traditional way in conjunction with the municipality. This is undertaken through an analysis of the site, identification of sensitive receptors or resources, an analysis of each of those. For example, an area that's particularly scenic may require a profile analysis to find out whether that facility would be viewed and to what extent it could be viewed from that point. We may undertake photographic simulation. These are done in color; the slide is not. This tower is not constructed. This has been modeled into the photograph. This is a tower, by the way, that was denied, so it will never be in this photograph. Health effects are assessed first by identifying isotropic radiation patterns of antennas, modeling power density as a function of frequency, power output, the height of the antenna on the tower and power density and then as a percentage of the federal standard that would be occupied. If you then add up those percentages, you'll come up with a total combined percentage of the standard that's occupied. These are the standards. What this allows us to do, in a very simple manner, is to plot or graph power density against distance, and this is provided to members of the public so that they may themselves feel comfortable in knowing what their exposure will be. Our position is, it's simply not good enough to say you are within the standards. We show that the standards are being met.

The telecommunications act is the law of the land. It requires or has provisions that provide for no discrimination, prohibitions, timely decisions, written decision based on factual evidence. Also compliance with the FCC radiofrequency health standards; also acknowledge that the FCC, federal government, has essentially determined a market structure which has established some of the technical requirements and the need for facilities that can handle off reuse frequencies and provide seamless coverage. Common elements of a decision from the Connecticut Siting Council include: A detailed analysis of the alternative sites, structures, access and antennas; worst-case combined modeling of radiofrequency power density as I've described. Detailed propagation and antenna separation analysis to determine where, how facilities are located and at what height they are to be constructed and how they are shared.

Tower sharing can facilitate the needs of not only the carriers, but also public entities, municipalities, state agencies. Assessment of the type of structure: Rooftop, monopole, lattice structure. It's not always advisable to seek, for example, a monopole. Some people view the monopole as more streamlined, but often the monopoles cannot hold as many carriers as the lattice structure. You have to carefully model each particular application for the circumstances that come with an application. We also consider the future use of the site with provisions for site restoration and facility removal. And during construction, if the facility is approved, we require comprehensive development and management plan, provisions for erosion, sedimentation control, architectural treatment and environmental and cultural surveying reconnaissance. The paradigm change with wireless facilities has evolved from high-level, high- powered facilities that provide coverage to a large area, such as those, and these (pointing) to lower-level facilities that are integrated with coverage from adjacent facilities, such as this, and this, and monopole with two carriers, two platforms for two cellular carriers; to even lower-level facilities such as this water tank with cellular panel antennas located on the walkway, signage and placement of panels on buildings. This is an example of a historic building that otherwise may have been avoided, but it was in a very, very good location and we felt as though, with the right architectural treatment, we could have this building serve as a cellular facility. The cellular panels are here. This is a drain pipe. I think we have done better than the original architects in some ways. In conclusion, telecommunication development cannot be avoided, but the siting can be effectively regulated. The industry is not static. It will continually evolve. We are seeing evolution now from antilog technology to the digital technology. We're seeing the federal government, the FCC issue additional licenses. Some would say the market is saturated. Nonetheless, this is an area that's been occupied and preempted by the federal government. The State of Connecticut's philosophy and policy has been to regulate certain facilities, the network-based facilities from the centralized position, from state government. It's a difficult policy to make state law. I believe Connecticut is the only state in the United States to have this centralized role. The telecommunication industry may prefer no regulation. Municipalities may prefer to keep home rule. Even if they don't know how to regulate it, even if they don't have the resources, home rule is a formidable force. Nonetheless, our state regulation has provided uniform and predictable regulations for consistent treatment of both the industry and public. And we have the resources to provide these very analytical assessments and reviews so that we can make a decision based on evidence, written evidence. I believe the industry has been well served. I believe the public has been well served with this model. Surveys in the State of Connecticut validate that. The industry is generally pleased with the agency, and the public is generally pleased with the regulation that's been provided. Thank you. I'm available for questions. CHAIRMAN SEMMEL: For the record, again, the Siting Council was established when? MR. REINBOLD: Connecticut Siting Council was established in 1971 to regulate the electric industry for high-voltage, cross• country electric transmission lines. In 1984 the council was given jurisdiction to regulate cellular telephone towers. Other areas under our jurisdiction include hazardous waste, low-level radioactive waste, ash residue disposal, fuel transmission, electric generation, electric transmission, fuel storage. We also have a role in arbitration for property condemnation, as well as the telecommunications facilities I've already mentioned. CHAIRMAN SEMMEL: In Connecticut is cellular telephone considered a public utility? MR. REINBOLD: No, it is not. In some states it is. Connecticut does not consider cellular a public utility. CHAIRMAN SEMMEL: Then lastly on my part, of the cellular towers that have been sited, could you guesstimate how many are on state or municipal property? MR. REINBOLD: I can say that probably less than 10 percent are on state or municipal property. The majority of the state facilities are on existing state towers that are owned and occupied by the Connecticut State Police or the Department of Transportation. The majority of the municipal facilities are new towers that have been constructed on municipal property, including municipal landfills and municipal garages, police departments, fire departments. CHAIRMAN SEMMEL: At this time I'll defer to Mr. Buxton, Minority Chairman on Telecommunications. REPRESENTATIVE BUXTON: Do you charge fees for this process, or is this strictly a state agency run operation? MR. REINBOLD: The fees charged include an initial fee which is then — REPRESENTATIVE BUXTON: By the applicant? MR. REINBOLD: By the applicant. — which is then used to balance all expenses incurred by the agency, including overhead expenses. After an application has been completed, all expenses are presented to the applicant for payment. There is incentive in the process for an applicant to find an existing tower or an existing structure to share and to go through a very minimal streamline process than to go through a new tower process. The new tower process will require substantial analysis which the applicant will be billed for. The analysis is done in-house. We have never used a consultant, so the fees that they pay are essentially state employee rates. REPRESENTATIVE BUXTON: What's the range of fees? MR. REINBOLD: They would range from a low of, perhaps, a thousand dollars to a high of, perhaps, $20,000.00. A $20,000 application would typically be a tower shared by multicarriers; would be a tower that is in a sensitive location that's being considered needed by the industry and strongly opposed by the local residents, where the agency is compelled to run a full assessment of all effects and criteria for need. The more difficult siting application, the harder we work. REPRESENTATIVE BUXTON: Does your siting commission comment to the FCC on their continuous rule-making policies? MR. REINBOLD: Yes. REPRESENTATIVE BUXTON: Is it true that a recent rule-making policy extended the one percent cohabitation to 5 percent — I have the FCC new regulations here that just came out and they are very confusing. They are raising the present threshold for noncompliance from one percent to five percent. MR. REINBOLD: For radiofreguency compliance? REPRESENTATIVE BUXTON: Yes. MR. REINBOLD: I believe what you're referring to is part of a proposed rule-making procedure that the FCC is seeking comment on. REPRESENTATIVE BUXTON: These are the rules that just came out two weeks ago. MR. REINBOLD: These are — REPRESENTATIVE BUXTON: August 25th. MR. REINBOLD: I'm not aware of rules that have been formalized at this time.

REPRESENTATIVE BUXTON: This is dated 25th of August, second memorandum opinion and order. MR. REINBOLD: My understanding is, if that's the same document I'm thinking of, they were seeking comment. REPRESENTATIVE BUXTON: It also included a notice for proposed rule making. I have no further questions.

REPRESENTATIVE LLOYD: Thank you, Mr. Chairman. Mr. Reinbold, how much does it cost to build one of these towers? MR. REINBOLD: Cellular monopole structure with equipment, 600 to $700,000 would be a fair range. Less equipment it might be less expensive. If the land costs are higher, of course, the site would be higher. REPRESENTATIVE LLOYD: What I'm trying to do is match up the regulatory cost with the construction cost to try to get some perspective. Would the 6 to 700,000 match up with the 20,000?

MR. REINBOLD: It could. It could also match up with our expenses below $5,000.00. REPRESENTATIVE LLOYD: But a 6 00, $700,000 would be a good rule of thumb as to what the cost of these towers would be? MR. REINBOLD: Yes. REPRESENTATIVE LLOYD: In Pennsylvania we have a tradition of local control of land use. That's a matter that has been much debated, but the end result has always been the same. One of the things that would concern me is that, if we put all of our eggs into that basket, that we might end up accomplishing nothing. But, I was also interested that your commission is charged with regulating a wide range of things which are some similarity. I would be concerned if Pennsylvania were to pass a law which said the state was going to take responsibility for siting cellular towers when the state, to my knowledge anyway, unless it's on prime farmland and you have to get an exemption or variance from the agricultural condemnation, Land Condemnation Board, that generally speaking the state doesn't oppose those kinds of requirements on other types of towers. You talked about ENS which makes sense to me, but I've never heard anybody talking about with regard to a tower. If one of the television stations at home wants to put a tower up on top of the Allegheny Mountain — maybe I'm wrong. I don't know if we had a witness from DEP who could answer this. But, my assumption is, they may have to follow some ENS plans or file something with the county conservation district, but certainly there's no detailed scrutiny. My concern would be, if we pick that out we would open ourselves up to a preemption argument that we weren't following a uniform pattern of land use. The state was regulating something, whereas, everything else is regulating locally and the state was imposing burdens on this type of tower that it wasn't imposing on others. Do you think we could get that passed the FCC? MR. REINBOLD: If you were to provide regulation that didn't discriminate against the wireless carriers, I believe it would be consistent with the Telecom Act of '96. If you were to provide differential type regulation, two different carriers, one type of regulation JF to, say, the PCS carrier and one type of regulation to cellular, there may be an inconsistency that could be challenged as discriminatory. If you were to do it, you would have to be consistent. REPRESENTATIVE LLOYD: But, you don't see a problem with the FCC if someone came back and said, you don't impose those kinds of requirements with regard to television towers or regular radio station towers? MR. REINBOLD: We don't, and we have not been challenged on it. REPRESENTATIVE LLOYD: I was also interested in your decision with the environmental issues because that was one of the things that helped to trigger this whole set of hearings. I have read the testimony from the first hearing and I have gone through the recent FCC proposed rule making. There is some wiggle room with regard to forcing the carriers to show they are in compliance. You said you require that. That's a pencil and paper type — That's not actually going out physically and putting some kind of a monitoring device, or is it? MR. REINBOLD: My understanding is, the FCC is now debating this and seeking some information on it through the type of procedure that can and should or may be required to confirm compliance with RF standards promulgated by the FCC. The issue has not been resolved. Connecticut Siting Council does modeling. We do in-house modeling, and in some instances we have required measurement. The cases where we required measurement have been very complex, multicarrier towers in tower farms where we believed there may be, reason to believe that the standard was being exceeded. In those cases we have ordered, without resistance, to have the testing. The carriers have tested with certified engineers and reported back to us. REPRESENTATIVE LLOYD: What did the tests show? MR. REINBOLD: The test in that case showed compliance, but it's a very difficult test that is very difficult to perform because the tower essentially has to be shut down and each transmitting antenna turned on in isolation, and then the measurement measures each antenna and transmitter in isolation. What you are essentially asking a tower owner and all the carriers to do is to shut down for a day while the testing is undertaken. We don't order that unless we think there's a problem. REPRESENTATIVE LLOYD: This is not something where you can say that we are going to have somebody go out and check once a year or once every six months? That's really not the way you would monitor this? MR. REINBOLD: We don't monitor it that way. We monitor it every time a facility is proposed or a facility is changed. So, we have information on all of our existing towers and the RF exposure coming from each of those towers. If a transmitter antenna or power is changed they would notify us. We would model it, and then we would issue a decision whether that is in compliance or not.

REPRESENTATIVE LLOTD: Is it possible, is there something — I hesitate to use this example, but I'm not a scientist and this I understand. If I want to detect whether there's radiation on a garbage truck coming to a landfill in my county from some hospital, I can take a Geiger counter or — They got more sophisticated piece of equipment than that, but I can take a monitor out and run it over to see whether it kicks above a certain level. Is there anything like that that you can use to measure radiofreguency emissions to determine whether they exceed a standard? MR. REINBOLD: Yes, but it's not that easy. The answer is yes, but because the standards are based on frequency and each frequency or range of frequencies would have a different standard, you have to measure each frequency in isolation. You just can't measure the frequencies combined.

Furthermore, the towers that have one carrier where you could do that in isolation are generally easy to model and you don't have to measure. REPRESENTATIVE LLOYD: This isn't something where we can just take a guy off the street and give him a piece of equipment and have him go out and come back and tell us what the readings are and then we know whether there's a problem or not. MR. REINBOLD: I won't recommend that. REPRESENTATIVE LLOYD: This is something that needs an engineer or someone who — Testing these on a periodic basis is a costly proposition? MR. REINBOLD: It's complex; it's expensive. The equipment has to be updated and calibrated. It's difficult. That may be one of the areas that the federal government, FCC, may preempt. REPRESENTATIVE LLOYD: Does Connecticut allow these types of towers on school buildings? MR. REINBOLD: There's no prohibition but we have never sited one on a school building. REPRESENTATIVE LLOYD: And the last question I have, I was fascinated by you said that you determined the public need, because in reading the federal statute that wouldn't seem to me to be something that the state has the right to do, to get away with that. MR. REINBOLD: Let me clarify. Good point. We do not determine the public need for the service or the carrier. We determine the public need for a particular facility at a particular site, whether that particular facility proposed will be able to provide the proposed service. So, for example, if Bell Atlantic proposes a site, we don't determine whether Bell Atlantic is needed in the state. What we determine is whether Bell Atlantic's proposed tower is needed at that particular location to provide proposed coverage to a particular area that they seek to cover at a particular height and a particular signal strength level. REPRESENTATIVE LLOYD: Suppose they say, we are going out to the rural part of the state and we want to start selling cellular service. There are many places in this state I know from driving over it where you can't communicate. Very good example of where there probably would be a big market, coming from down from Penn State, State College, to Harrisburg, you go through an area there, lots of people running back and forth but you can't get any communication. Bell Atlantic comes in there and says, we want to put up a tower. We had your law, we would get to decide whether there's enough potential business there to justify the tower? MR. REINBOLD: Not business, but the area to be covered. If it's an area that there is no coverage at all and you weren't trying to integrate that with existing adjacent coverage, you would probably have an easier time at it. If you were trying to integrate that coverage with existing adjacent coverage, you would have some ability to determine where and how that facility goes. Further, if you did have an area where there was no coverage and you were providing coverage in isolation, you might seek to know where the adjacent cells would be proposed in the future to determine whether those sites would be acceptable. We would do that.

We not only would consider where a site is located, but also where the adjacent sites are located and where future sites could be located. Once you determine a location of a site, it will have an effect of predetermining other adjacent sites. We don't get in the business of telling an applicant where their sites go and how they should engineer their network, but we have the authority and an obligation to make sure that those cell sites are in the best locations possible to protect the public. REPRESENTATIVE LLOYD: How often have you turned down an application and had that appealed? Frequently or infrequently? MR. REINBOLD: Infrequently. REPRESENTATIVE LLOYD: Where does the appeal go in Connecticut? MR. REINBOLD: Superior Court, Appellate Court, Supreme Court. There's also statutory provisions where there could be an administrative appeal back to the agency. REPRESENTATIVE LLOYD: You're an administrative agency, so in our state it would go presumably to our appellate court that handles administrative agency appeals. Thank you.

CHAIRMAN SEMMEL: Representative Colaizzo. REPRESENTATIVE COLAIZZO: You said in Connecticut was what, 1984 when you started monitoring cellular towers? MR. REINBOLD: That's when we started regulating the sitings. REPRESENTATIVE COLAIZZO: Was there any existing towers prior to that? MR. REINBOLD: Yes, but not cellular. REPRESENTATIVE COLAIZZO: There was no cellular. MR. REINBOLD: Correct. We have over 100 cellular towers now. We have 29 cellular structures being used. We have 69 other towers being used. We have well over 400 facilities being integrated into the system one way or another. REPRESENTATIVE COLAIZZO: How did you handle the other towers that were in existence prior to your existence? MR. REINBOLD: Those that were there before our jurisdiction were grandfathered in. However, our tower-sharing law under 16-50j (aa), which I provided a copy in my testimony/ gives us the authority to share those facilities when legally, technically, economically and environmentally feasible, and such sharing meets public safety concerns. We can go back to those existing towers and force sharing if we see the need; and, quite frankly, the need would be to avoid construction of a new tower somewhere else. REPRESENTATIVE COLAIZZO: Thank you. CHAIRMAN SEMMEL: One final question on my part and then I'll ask Mary or June if they have any particular comments. In your written materials I see you have had the opportunity to review some of the testimony of the previous hearing. Are there any particular points you would want to highlight or that we should consider, reconsider some of the comments we heard in June? MR. REINBOLD: I have to beg your pardon, but I haven't had the opportunity to review the earlier testimony. CHAIRMAN SEMMEL: My error. I just assumed when I saw Mr. Herr and Mr. Gardner's name in here I thought — I'm sorry. I'm in the next testimony. Mary. MS. KEENAN: I just have a question about the analysis that's done by your council. What's the size of your staff complement, and what either are their educational backgrounds or the particular skills they have? MR. REINBOLD: Ten. Backgrounds range from technical GAS, siting analyst, urban planner, city planner, administrative support; annual budget, about a million dollars a year. MS. KENNAN: A million? MR. REINBOLD: About; actually, about eight hundred thousand. CHAIRMAN SEMMEL: June. MS. PERR7: I just have a couple questions. Is there or has there been any legislative attempt to change the authority for siting of cell towers? MR. REINBOLD: Yes. The last two years there has been an attempt to expand the council's jurisdiction. It's been supported by industry. It's been supported by the American Planning Association. It's supported by the Connecticut Conference of Municipalities. It's been supported by the regional planning agencies. It's been supported by the Council of Governments, and it's been supported by many legislators.

Both years the legislation has died in session/ once during debate and once before debate. I have been asked to raise it again this year. I don't know. We'll see. The problem is, it's a problem as I perceive about ready to happen. I think there's been a reluctance to establish a process to regulate it before it becomes an obvious problem. MS. PERRT: But when you say expand authority, to include what? MR. REINBOLO: To expand to include the PCS carriers and some of the other future wireless carriers. Our definition is, quote, cellular as defined by the FCC. Back when that was written in 1984, it was considered to be the wireless flavor, and now the industry is willing to challenge us also on that, or at least they have said they are about to challenge us on whether or not that is a generic title, definition, that should be conveyed to PCS and other wireless SMR paging entity carriers.

Legal, I would have to say no, because cellular is cellular as defined by frequency up around the 900 megahertz range. We've said no. To be comfortable and feel confident that our state legislators know what their state agencies are doing, we've asked to have that changed as a technical change, and at the same time, we've tried to bring in additional provisions for municipal input. We've suggested additional meetings with the municipality. We've suggested even requiring a super majority vote to approve a tower if the municipality were to object to it. I think this is good law to try to build a partnership between municipalities and the state. My understanding was, it was widely accepted, but it wasn't to be. Actually, it wasn't raised this last session. The other part of the legislative packet that was raised was to encourage the State of Connecticut to lease out its buildings and property, including rights of way, to carriers, to make available to those carriers its land for total communications facilities. What we were envisioning was the state building rooftops, state offices, maintenance garages, as well as rights of way, highway rights of way to be used for telecommunication facility development to offset the need to build towers or antennas in less appropriate locations. The contracts would have been negotiated by the state agency. There was negotiations to have our Office of Policy and Management negotiate the contracts. I think that was a fine amendment. But again, that also was not raised and it was not raised before debate. MS. PERR7: Just one other thing. Your abbreviated process is what, 2 to 4 weeks? What is — MR. REINBOLD: One hundred eighty days for a new tower would be the deadline, and it can be extended upon agreement with the applicant an additional 180 days. Typically, we can act on a new tower in four months. Much of that time is downtime waiting for comment. We require our record to be open 30 days after a hearing before the record is closed.

We cannot schedule a hearing no sooner than 30 days after an application is filed with us, so there's two months of just downtime allowing the public to have access to the information and soliciting their comment. MS. PERR7: That's all. REPRESENTATIVE BUXTON: I have one quick follow-up. On your application, does it provide that when the technology no longer is needed for the towers or they are no longer in use that they need to be dismantled? MR. REINBOLD: The law does not require that. We order it as almost a generic order; that should the facility not provide the services that it was proposed to provide, that the tower shall be dismantled and the site restored or reapplication made to us. That has not happened. If that were to happen, I would suggest the first thing we would do is seek input from the community and the municipality for their consideration for future use of that facility before the tower would be removed and site restored. REPRESENTATIVE BUXTON: But you have no policy requiring it? MR. REINBOLD: That's correct, there's no policy. It's been a long-standing order.

REPRESENTATIVE BUXTON: We were being told, perhaps in 10 years these towers could be obsolete. Are we going to have a sea of towers across America that aren't used with no means of their disposal, particularly in areas where local zoning or other local laws, some may not require their removal. I think that's a problem far out that's not necessarily that far away. MR. REINBOLD: I would agree with that. I would agree that that is a problem and we have addressed it individually with each application. REPRESENTATIVE BUXTON: Thank you. CHAIRMAN SEMMEL: Along the lines of your cost of 600,000 to 750,000, were there any instances for environmental reasons that you mandated certain things that maybe the cost to do this might have been almost a million dollars to set up that particular cellular tower or disguise it accordingly?

MR. REINBOLD: We've ordered painting. We've ordered landscaping. We've ordered use of alternate sites. We've ordered architectural treatment of equipment building. We've changed the heights of facilities, lowered the heights of some facilities. We even discussed the increase of height of certain facilities when it allows other carriers to come on. But, I don't believe the type of regulation that we provide has increased the cost of a physical tower. For example, the camouflage tree towers, we have not ordered that. CHAIRMAN SEMMEL: Thank you again, Mr. Reinbold. MR. REINBOLD: It was my pleasure. You've got my phone number, my address. If you have any other questions, feel free to contact me. CHAIRMAN SEMMEL: At this time we'll call on Craig Hornberger, Senior Air Specialist, Pennsylvania Department of Transportation. MR. HORNBERGER: I'm Craig Hornberger. I'm the Aviation Specialist Supervisor for the state. In that capacity I'm responsible for licensing and inspection of airports, heliports and seaplane bases within the Commonwealth. Two of the specialists that work for me are here, Jack Redman who is a specialist for this area of the state, and Jerry Gromlowicz who is our aerospace specialist. I appreciate the opportunity to address this subcommittee. I was asked to testify in response to questions you had from a previous hearing. Answers to these questions are attached to my testimony. I'll try to expand upon that in this testimony. CHAIRMAN SEMMEL: I'm not sure that all members know necessarily that we were trying to address the unmanned airports in particular. We want to get that on record. MR. H0RNBER6ER: The Bureau of Aviation performs evaluations on more than 1,000 objects in a year which may have an effect on Pennsylvania's airspace. The vast majority of these submissions are for new proposed cellular antenna. Chapter 59 of the Pennsylvania's Aviation Code, in this booklet, mandates that local municipalities adopt, administer and enforce airport zoning regulations to protect airport hazard areas. For many years the Bureau of Aviation has endeavored to convince airport owners and operators to work with their local government officials to enact airport hazard zoning. The establishment of unobstructed approach areas around airports will guarantee the preservation of a viable transportation resource for the future. This airport has an area, as defined in this model up here, for a typical airport runway. For a visual unmanned airport it may be something like this small area. For an instrument runway like Greater Pitt, it may encompass an area that goes out to 50,000 feet from the runway in. I'll talk more about this a little later. Unfortunately, many communities have failed to realize the local airport is a valuable economic resource and have allowed development to occur which now jeopardizes these airports. Although there's a mandate in this law to enact airport zoning, not all municipalities have enacted the zoning. We probably have somewhere like a 60 percent compliance rate, and the law allows no penalty for not enacting airport hazard zones. The majority of public airports within Pennsylvania are uncontrolled; meaning, that there is no airport traffic control tower, and do not have instrument approach capability. Both the Bureau of Aviation and the FAA evaluate potential obstructions to aircraft. Electronic interference by cellular antenna towers is controlled by the FAA and the FCC. The Bureau is unaware of any inference problems associated with cellular activity in the area of aviation ground-based navigation systems. It appears the FCC and the FAA have done an excellent job of frequency management. It is generally acknowledged throughout the aviation community that there has been no conflict between aviation and navigational aids and other communication modes. Normally, when an interference complaint is made, the FAA requires another aircraft to verify the reported problem, confirming that the problem exists with all aircraft; not only the one reporting a malfunction. As I mentioned earlier, the majority of Pennsylvania's public airports are uncontrolled. At those airports which are open during the hours of darkness or in marginal weather conditions, airfield lighting is operated in one of the following ways: By a photocell, which lights come on automatically at dusk; by leaving lights on dusk to dawn, or by using pilot-controlled lighting. We take the microphone and just click it on a certain frequency to activate the runway light. This could activate runway lighting, visual approach self-indicators, rotating beacon at an airport. Any number of things can be set up with pilot- controlled lighting. This pilot-controlled lighting utilizes a discrete VHF radiofreguency or a Common Traffic Advisory Frequency, commonly referred to as CTAF. A pilot controls the airfield lighting by keying the aircraft microphone a designated number of times in accordance with instructions contained in the Airport Facility Directory, which is published by FAA every (drops voice). I'm not aware of any complaint associated with cellular activity and pilot-controlled lighting frequencies.

I 'm sure anyone who has flown on an aircraft which utilizes sophisticated navigation equipment has been briefed not to us use electronic devices such as cell phones, radios or other equipment which may emit electronic signals while in flight. However, most airlines offer telephones on board the aircraft while in flight and they do not present a problem, as they are properly shielded. Example, state aircraft that we fly the Governor has a phone on board where he can make local phone calls, but cellular phones must be turned off on board the aircraft. The Bureau is mandated by the Aviation Code to evaluate any proposed object to be erected near an airport if the object might have an effect on the operation of the aircraft within an approach area of the airport. This area extends above an inclined plain surrounding a public airport or heliport. The Bureau's evaluation, conducted in accordance with guidelines or regulations adopted by FAA, seeks to limit the physical height of an object so as not to allow it to be an obstruction to air navigation. For example, if any proposed tower would penetrate any of these surfaces as depicted on here, the Bureau of Aviation would object to its construction. The FAA then, however, will do an aeronautical study to determine if that tower is a hazard or not a hazard to air navigation. If the FAA makes a determination of no hazard, by state law the Bureau must then defer to the FAA decision and allow that tower to exist, even though it penetrates one of these Part 77 obstructions. Part 77 is a federal aviation regulation. Currently, the Bureau reviews proposals on our Notice of Proposed Construction or Alteration form, AV-57. Or, if a company does not know of the state law and they do know of the federal law and use a 7460 and they'll propose construction through the FAA, the FAA will then send us a copy and we'll do an evaluation based on that information. When the FAA does an aeronautical study, it goes through five offices in their eastern region in Jamaica, New York, for evaluation. It goes through air traffic, through airports, airway facilities, flight procedures and frequency management. After reviewed by all those five divisions, they come up with a determination of hazard or no hazard as appropriate. If the FAA determines the obstruction to be no hazard, the Bureau defers to FAA's determination. That's probably due to legal implications. If the Bureau would continue to object, or problems of unjust condemnation, then fees may come back on the Bureau. The Bureau does not evaluate frequency or marking and lighting of objects. The licensing of frequencies is vested with the FCC. However, the FAA will evaluate an object both as a potential obstruction to the airport and for possible frequency interference with an instrument landing system. The Bureau performs its evaluation under FAR Part 77, and upon completion, the proponent is notified in writing of the Bureau's objection or non-objection to the proposal. In the majority of cases submitted, the Bureau has deferred to the FAA study, and the majority of the cases the FAA determines objects not to be a hazard to air navigation. It's a rare occurrence when the FAA determines something to be hazard to air navigation from our experience. The FAA only uses this Part 77 as a screening device, and they then do the study. To put the process into simple perspective, the FAA airspace study examines all potential hazards of air navigation. A structure which violates technical standards of FAR Part 77 may not pose an actual hazard to an aircraft as the term hazard is defined unless the structure meets the certain criteria. In closing, I wish to state that the majority of cellular companies have cooperated with the FAA and the Bureau concerning the placement of towers in relation to public airports and negotiating the height of towers. My staff and I would like to take this time to answer any questions you may have. REPRESENTATIVE BUXTON: On page 1 of your testimony you make it very clear that many local municipalities don't have local zoning in relationship to enforcing airport zoning regulations. If I'm a cellular company and I come into an area unintentionally to erect or construct a tower, how do I know that I may or may not be interfering with an unmanned airport facility, if there is no local zoning or applicable law in effect? MR. HORNBERGER: You probably wouldn't know if you're in compliance or noncompliance of any local zoning ordinances unless you went to the local municipal. But there is a federal and a state requirement to notify both the state and federal government of this plan. The onus would be on the cellular company to go to the local municipality to determine what local requirements are in place. When the state does a determination, we tell them that this is a state determination but you must still comply with all federal and local, or other state agency requirements. REPRESENTATIVE BUXTON: I have to assume from your testimony the potential for a problem does exist with the type of communications of unmanned towers; that pilots must use to activate runway lights and beacons, or whatever. A potential problem could exist — MR. HORNBERGER: We would like to see a hundred percent compliance with local zoning. We see that as the place for control. REPRESENTATIVE BUXTON: But my question is, in the absence of local zoning; if the industry determines a site for erecting a tower and that tower may have some inference with radio frequencies to a local unmanned airport, who knows that? Who would ever know that? MR. H0RNBER6ER: Frequency inference is only regulated by — REPRESENTATIVE BUXTON: Local government gives the company a permit to erect a tower. Unbeknown to anyone that tower is emitting frequencies that interferes with the pilot's ability to communicate with those runway lights. Who would ever know that until there's an accident? MR. H0RNBER6ER: It wouldn't be known by just approval from local government, but the state and federal requirements are still in existence. The FAA and FCC are responsible for that determination. REPRESENTATIVE BUXTON: Does the company have to indicate that their construction is not going to create this problem? If so, who to? MR. H0RNBER6ER: Frequency is regulated by FCC and assigned by the FCC. REPRESENTATIVE BUXTON: My concern is, in Pennsylvania we have so many local governments, and most of them don't have local zoning. I don't know how you keep track of the industry in areas where local zoning doesn't occur in relationship to potential problems of unmanned airports. MR. H0RNBER6ER: The state only does the height evaluation. That's all we are allowed to do by the state law. We can control that to an extent by state law, but we do have the mandate for the local municipalities. If there's no zoning, it can go to the county level, and we have done that in some instances. CHAIRMAN SEMMEL: Maybe your colleague may be — MR. GROMLOWICZ: We would go back — THE COURT REPORTER: Excuse me, I need your name and spelling. MR. GROMLOWICZ: Jerry Gromlowicz, G-R-0-M-L-O-W-I-C-Z. Again, we would go back to the FAA. When they do their review here it goes through a frequency management section there. They will know of the existence of an airport in that area with a particular frequency for light control, or whatever it may be. That's how they'll compare these frequencies. Will this cell phone antenna interfere with the frequency that's being used at the local airport? It is looked at. It's not looked at by us, though. REPRESENTATIVE BUXTON: No further questions at this time. CHAIRMAN SEMMEL: Representative Lloyd. REPRESENTATIVE LLOYD: Malfunctions. Somebody looks upfront and says that, somebody down in Washington looks at this and says there shouldn't be any inference here. The frequency shouldn't cause any problem with pilots coming into this airport, but now the tower malfunctions.

There was some testimony at the first hearing by a witness from the FCC that he was aware of that possibility, but he really didn't have the ability to address how frequent that might be, how you would discover that other than having an accident. Is that something that you are qualified to respond to? MR. H0RNBER6ER: Only maybe as a pilot, my navigation equipment in my aircraft would tell me if there's frequency interference since I'm not getting the strong signal that I'm using for navigation. I would get a flag on my instrument telling me it's not valid for use in navigation, and I then would have to go somewhere else.

REPRESENTATIVE LLOYD: It wouldn't throw your instruments out? In other words, we've heard about some accidents, including the one out in Guam, which may or may not really have been caused because of someone's error. But, maybe the instrument wasn't either read properly or it wasn't working properly. That's not what happens?

If you fly through what's been referred to as a cloud because there's somehow been a failure of that tower, you would know that there's a problem? You would not get an incorrect reading that would lead you to start to land at the wrong place? MR. H0RNBER6ER: No. I can't testify as an engineer, but it's my understanding that I would get an indication in my aircraft that I'm not getting a strong signal from the cycle I was using for navigation and would then know I had an invalid signal that I couldn't use. REPRESENTATIVE LLOYD: Your real problem would come if you are running out of fuel and this is the closest airport and you were counting on stopping there and now you can't. It shouldn't be a problem in which you are going to crash because you think A and it turns out it's B?

MR. H0RNBER6ER: It shouldn't be.

REPRESENTATIVE LLOYD: The other question I have, and you're probably not able to respond to this. Since you seem to be the only witness we have from the administration,

I'm interested in knowing if we wanted to have somebody in Pennsylvania do the type of technical work that the Connecticut Siting

Commission does; if we wanted to make that available to our local governments, who in the

Commonwealth, who in the administration is the agency or the bureau which would be qualified to do that?

MR. HORNBERGER: That I couldn't answer.

REPRESENTATIVE LLOYD: I think that's an issue on which we need to try to get information from the administration before we write a report, because we have had some interesting ideas put out here. It's pretty clear that our local governments are not equipped to do that. I don't know who it is in the state government. Presumably, somebody does have that technical expertise. Thank you, Mr. Chairman. CHAIRMAN SEMMEL: Representative Colaizzo. REPRESENTATIVE COLAIZZO: No questions. CHAIRMAN SEMMEL: Thank you, Mr. Hornberger. MR. HORNBERGER: Thank you. CHAIRMAN SEMMEL: At this time Mr. Paul Rubenstein, Independent Consultant, whose testimony I preempted a moment ago. MR. RUBENSTEIN: Yes, I did mention Mr. Herr in my testimony. Again, my name is Paul Rubenstein. I'm an independent consultant that has worked previously with several carriers within the State of Pennsylvania, or the Commonwealth of Pennsylvania. I'm very familiar with their process that they go through in selecting sites, identifying sites and then taking these sites through zoning. I want to talk a little bit about that. I also want to address some of the questions that were brought up at the last meeting, the last hearing. Some of the answers that were given were not correct. I wanted to clear the air. I believe that everyone here is familiar with the history that brought about cellular communication. In around 1977 the FCC granted experimental licenses in Baltimore and Washington and Chicago to the local Bell Companies. Around 1982 they defined rules to determine how cellular systems would be administered. These rules have impacted how current technology is being developed. One of the key provisions involve competition. The commission determined they would authorize two cellular carriers within each market. One would be the local Bell Company and the other would be a non-wireline entity. The applicants would have to show financial and technical ability to build out that type of facility or that type of system. In addition, they would have to demonstrate why the grant of the license would benefit the public. As a condition of the license, the grantee must have 75 percent of its service area covered within 5 years to hold onto the license. The carriers must support high- quality, inference-free service in order to comply with FCC requirements and in order to compete with the other provider. As a result, billions of dollars have been spent providing quality service which we've all grown accustomed to. Anybody who has a cell phone it's almost land-lined like. These systems were originally analogged and there were designed for a mobile market. Mobile is a 3-watt system. Typically, nowadays, you have a portable system which is about a half of a watt. Each carrier is given 333 channels to use in a designated market. So, each channel is a telephone call. So, the technology that Bell labs developed enabled these carriers to reuse channels and each reuse is called a cell. Each cell has a grouping of channels that is reused; thus, the term cellular. PCS providers, they use the same type of system. SMR companies, they all use that same type of cellular development/ cellular grid pattern. In the beginning the base station sites necessary to provide the service were relatively few in number. That's because, as the guy from Connecticut—I forget his name— the initial development called for very large towers that covered a large area. As time, customer demand, new technology, better technology forced the height of the towers down to a more localized area. As the system matured and it also moved to a portable system, which is the .6 watt system, more coverage and capacity were required, and that also aided in localizing or reducing the height of these towers. The overall process took about 14 years. It's still being improved on. There are still capacity sites which can be pooling cell splitting. In some of the areas like driving from Harrisburg to State College, you need footprint sites, capacity sites. I travel from Pittsburgh to State College to do work for one of my clients. There's a need there for additional coverage because it's nonexistent. Part of the mandate is, you need to provide your market with coverage. If you don't provide it, there's a threat that you can lose your license. If the quality of service isn't there, there's a threat you can lose your license. This is after nationwide billions of dollars have been spent, locally, probably a hundred million dollars over the past 14 years to develop the system. What's the next step? We are now moving into the personal communication services. You may have read about this where the FCC auctioned off licenses to different providers. They have raised about $16 billion in licensing fees. The requirements of the providers are that, they need to cover one-third of the population within five years and the remainder within 10 years. If they hold a 10 megahertz license, then it's a quarter of the population within the market within five years, and the residual within 10 years. This system utilizes digital technology and will be built to support the portable user. In addition, since higher frequencies are weakened by obstacles in their path, more sites are typically needed for this technology to cover the same geographic area that a cellular analog system would cover. These providers are faced with challenges that analog companies never faced. Number 1, we are facing competitors that have a very good existing system. They are also being challenged by PCS competition. Recently, the DEF license holders were awarded their frequencies. The C block winners, they kind of overbidded on their licenses, so the FCC was asked to basically forgive some of the monies that were promised to the government so these companies can secure financing. Whether or not that happens I don't know. It's supposed to come out this week. Cellular carriers never had to spend money on licensing fees. Current PCS carriers, as I said, they have spent $16 billion on licensing fees.

So, they've had to come up — There goes their capital. They've had to come up with creative financing from equipment providers in order to construct their buildout. Nov, cellular carriers had 14 years to develop their networks. The driving force behind the PCS buildout now is not with the FCC mandates, the one-third of the population. If you are coming into a competitive environment, you have to provide the exact same service that the current carriers are providing or you are not going to make it in the marketplace. Sprint PCS which has one of the licenses in Pittsburgh, their numbers are way off because they don't have the coverage that an AT&T wireless system would have. They are seeing that, yeah, coverage is important; quality of service is important. So, what does this mean? It means that these companies now have to spend the $100 million over the course of 12 to 18 months to get their systems up and running to be competitive. They have secured financing through a Lucent Technology or an Ericson. They also have investors within their company that they want to see some type of return on their investment.

Typically, in a forum like this, carriers don't like to talk about that they're in the business to make money. Quite frankly, that's why they are in business. They are in business to offer a service to the public. When you have monies being spent on license fees and you now have to secure financing for the construction with no revenues being generated, you are at a slight disadvantage. PCS, since they don't need to be as high as a cellular system when they are constructing their sites, they can look at creative solutions, and that's where the water tanks come into play. That's where the church steeples come into play. That's where the flag poles come into play, light stanchions. They can look at those types of structures and be creative and develop an aesthetically pleasing hidden-type stealth facility.

You also see that in cellular though because of the cell splitting, so on and so forth. That's also bringing the height of these structures down. So, where are we here? Where are we at this point? We have thousands of new customers waiting for these systems to come on line to hold — to be able to handle these types of new customers. You have billions of dollars in licensing fees to the federal government, and you have creative financing for construction waiting to be spent. You have deployment models all being created ready to go. Then what do you have next? You have the NIMBY syndrome, and that's not in my backyard. That's the new cellular tower or wireless towers, that's the new NIMBY. The road to selection. What goes into selecting these sites? It's not an easy or rapidly and haphazardly process that Mr. Herr and Mr. Gardner suggested. Both cellular and PCS companies generally take the same approach when they identify and select the site. Aside from the initial deployment, the decision to expand the system is based on a number of different factors. First, they take the number of current customers within the area and they look at the capacity of the system and identify that there is a need to expand. Second, the quality of service within the area is continually evaluated and that's through a computer analysis, the switching equipment and through feedback from the customers. They continually have calls generated saying, I continually drive through this area, drop calls, busy signals. Those are indications that there's a problem with that system in that particular area. Third is any FCC licensing requirements they haven't fulfilled yet. Several months of planning is used for the placement of these facilities and the height that's required from these facilities. They also look at topography, terrain, and they enter that into a computer with other sets of variables like available frequencies, the height of the antennas, type of antennas, and through this computer- generated model they come up with what's called a search ring. You can tell that this process is far from being haphazard. It's months of planning that goes into this process. The search ring is then taken into the field and the area is reviewed by a specialist. The question that couldn't seem to be answered was, what happens if there's a local airport, unmanned airport? How do you know it's there? Number 1, during the engineering analysis the companies that I have worked with, and I have worked with 10 throughout the country, they contract a consulting company that is versed in FAA regulations and they take a look at that initial optimal area. They take the coordinate and they determine what type of flight paths are there and they will render an opinion saying, it's either too high, reduce it; or, you're not even close. You have to move it two nautical miles east. That's all done in that preparatory stage. In the field you also have the local zoning review. I'm jumping a little farther in my testimony, but that's all part of this process. For example, I located a site, actually two sites in Somerset County, and part of my process was going — It was the county that administered that airport zoning regulation. I had to go to the county, meet with the engineer and determine whether or not our facilities were within the horizontal, I don't know the term, but it's the flight rings, the flight paths.- Through that local interaction we were able to determine that we're not going to cause a problem with the local airport. Also, the specialist when he or she is out looking into the field they look at all types of existing structures within the search area. One of the things they are looking for is speediness of getting that site up and running. So, if they can find an existing structure that is high enough to support the coverage objective, that's what they are going to go after. It could be an existing structure such as a building, rooftop, existing tower, so on and so forth. If none are found, then new construction sites are identified within the ring. That person will target property, both private and public, within the area zoned for the use. If the ordinance does not specifically address wireless, then you must look for the closest match. This gets into the zoning end of it. How do you get into the area if they don't define cellular communications? Mr. Herr suggested that all carriers look at the public utility designation, and that's clearly not the case. When you go into a jurisdiction, they are governed by their local ordinance. If their ordinance defines public utility to include telephone, then that's an appropriate definition. If it does not include telephone, or if there's a clause that some of them indicate that they must be regulated by the PUC, then you don't fall under that. Tou look for the next best option. There could be a provision for transmission line towers. There could be a provision for radio and TV transmission and receiving facilities. Tou look for the best fit. If, through your decisions with the zoning officer isn't fruitful or if the ordinance just does not permit wireless communication, then you may have an exclusionary zoning and that takes time, money, the whole deal. Once an area is identified the property owners are contacted. Very rarely does a landowner or building owner say no. The vast majority are extremely interested in either selling or leasing a small parcel of land or an area on their structure. While the site is being placed under agreement, engineers are designing, performing geotechnical analysis for foundation design. They are investigating NEPA requirements, and they're performing Phase 1 analysis and they're surveying the property. Once completed, the site is ready for zoning and the permitting process. If no hearings or several hearings are required, that may or may not necessitate experts to be present to testify. Once the permitting process is complete, then construction can commence. There were several questions that I wanted to address. One of which was, and I think that kind of spawn this whole hearing scenario, was the Ominpoint wanting to locate a facility on top of a school. Getting back to how these designs are designed, with the sites being lower and lower in height, that eliminates the flexibility. You may have an area within an urban area that's only a quarter mile in radius, so you're limited by what's in that area in order to provide the coverage that you need in that particular area. You may have a hospital. You may have a school. At one point, to be honest, those facilities were, quote unquote, taboo, and it was because they didn't want any perceived problems. Well, now the choices are becoming fewer and fewer. These facilities offer a perfect environment for these types of facilities. One of the local carriers, actually, they were going to go on two schools within the City of Pittsburgh, but it was determined that the representative which was not part of the school district didn't have the authority to enter into a lease agreement, so those sites were abandoned. But yes, they are looked at, and they are utilized in other areas of the country. You may have heard of the Nil which is coined the telecommunication superhighway. Part of what's happening is LNDS. That's wireless connectivity to the Internet, to phones, to cable, to data so the future is wireless. The future will be this LNDS that bypasses land-line facilities. So, if you are a school, you're a hospital, in some cases cases libraries — In one community their libraries are hooked up. If you have facilities on top of these buildings, your nearest site is right there. Tou have immediate access to these types of services like the Internet, to be able to provide data collection, so on and so forth. These are looked at and these have been used in the past as wireless facilities. I talked a little bit about the potential airport hazards, where it falls upon the carrier to do an analysis prior to sending the field people out for inspection. In addition, any towers that are constructed are filed with the FAA, and the FAA determines whether or not these facilities are lit and marked. In terms of frequencies, I'm not familiar with what frequencies are used at airports, but keeping in mind that each facility is given a certain frequency. My pager, for example, is at 950 megahertz. If somebody is using a phone at 838, there's no inference. The bandwidth is separated and you have radio AM and FM. Each uses a separate frequency. My cellular phone is not going to interfere with an AM facility because, quite simply, the frequency is different. I believe the same would hold true with an airport situation. There's really no public necessity for their existence. That was a quote by Mr. Herr and Mr. Gardner in their testimony. Most recently for me, I used my cell phone when I ran out of gas. This was a recent occurrence. It might have been something stupid that I did, but I had that phone to be able to call people. We all know about the lady, Karen Nelson in South Dakota, who was able to direct EMS services to her car while she was trapped in a blizzard. They were able to find her because of the use of her cell phone. Hurricane Fran in '96, the only operating utility was cellular. In fact, none of Cellular One's facilities were destroyed. During Hurricane Lili the meteorologists in Cuba and the U.S. communicated via cellular phone because that is the most — They realized that that type of network will withstand these types of phenomenon. Antennas enhanced the quality of life in a community. Several studies have indicated that property values do not decrease. Diamond Run in Ohio Township here in Allegheny County is a good example; property values not being reduced. This is a golf course community that has, I believe Bell Atlantic, has a monopole structure on the golf course, and they had no problems selling their lots.

Are radio waves dangerous? I'm not an engineer, but I have done a lot of zoning hearings where we have brought in experts that have provided testimony. I've been privy to that type of situation. Radio waves like PCS, they're considered non-ionizing radiation as opposed to ionizing radiation. I don't know what the difference is, but I can tell you, non-ionizing is AM frequencies, microwave, cellular, PCS. Ionizing radiation would be x-rays and cosmic rays. The term radiation, and this was brought up at the last testimony — The term radiation should not be confused with radio• active. Radiation does not mean radioactive. Radiation simply means power coming in waves from a source. These sites are not radioactive. This was brought up in somebody's testimony at the last meeting. Decades of research have shown that there are no effects from RF emissions. Most recently, this is a local trade magazine called RCR, September 1, 1997. This is a Belgium study; no effects. The two doctors that were here talked about a study in Australia where tumors were shown on mice. What they failed to mention was that, these mice were bombarded with RF 10 times the amount of what a normal human being would be exposed to, so we're not talking apples and apples when these studies show that type of information. Quite frankly, I doubt if their findings will be able to replicated. In conclusion, my experience has shown that local municipalities are willing to work with you if the right approach is taken. Forcing a site will only cause problems. I think that's where you get a lot of opposition is when you try to force a site. I don't believe that statewide zoning is needed if the local governments are willing to listen to the truth and not be swayed by fiction. I believe that wireless will eventually replace the land lines and will be the primary source of communication and data collection. Cell sites should not be treated differently with additional regulations. There's no reason for it other than the NIMBT syndrome. Thank you. REPRESENTATIVE BUXTON: Mr. Rubenstein, what kind of wireless communication companies do you work for, that you do business with? MR. RUBENSTEIN: I've worked with Sprint PCS. I've worked with Horizon Cellular. I've worked with 360 Communications, and I've worked with Sprint Cellular who is now PCS. I've worked with them on two separate occasions. REPRESENTATIVE BUXTON: Something that's near and dear to me, you indicated in your testimony that certain public buildings are sought out as potential locations for wireless communications. You made a statement that school buildings are utilized in other areas of the country. I'd be very interested in knowing where that might be since I have a number of constituents that disagree with the decision that a local school board made in allowing the construction of these antennas on a school building. Are you aware of other places in the country where this is occurring? MR. RUBENSTEIN: Through my research I found that there was a symposium that was held. Based on the notes of the symposium, there were sites located on top of schools, and for the simple reason that they had — I believe it was GTE. They have that type of data Internet service already being established. I believe it was in California, but yes, it has happened. REPRESENTATIVE BUXTON: You don't know specifically?

MR. RUBENSTEIN: Specific school districts, no. REPRESENTATIVE BUXTON: Tou made a reference to Mr. Herr and Mr. Gardner's testimony at the previous hearing. Just for the record, those two individuals represent boroughs and second-class townships in Pennsylvania. Tou brought up the issue of their concern of whether these are considered a public utility. The Butler Township decision, Commonwealth Court, in '92 is being used I guess by cellular companies to indicate that they should be looked upon as public utilities and, therefore, apparently given carte blanche for any type of location in a municipality as they desire.

What if the legislature were to enact legislation addressing this issue of public utility? What effect would that have on your type of business in siting locations around the Commonwealth? MR. RUBENSTEIN: Depends on what the legislation would contain. Would it pull the wireless providers under the PUC designation, or would you exclude cellular providers from the definition? I have to tell you that their statement is incorrect. Companies do not use that as their automatic carte blanche end to a community. As I testified, if the definition, and that Hock case, Hock versus Butler Township , it's based on the definition. If the definition includes telephone but doesn't say anything about being regulated by the PUC, that's a clean definition to me. I believe that we would be allowed under that municipality's definition. Now, if there are companies that use that, I believe they are using it incorrectly because the spirit of that, the other provision of that, and I don't know if it's actually in the written decision, but it also has been used as, jurisdiction may look at cellular communication or PCS companies, may look at them as a public utility for zoning purposes only. If there's nothing else in the ordinance to fall under, what do you do? REPRESENTATIVE BUXTON: Someone who services the industry and I guess helps select sites, explain to us in your process whether you are encouraged by the people that you represent to co-locate? MR. RUBENSTEIN: That's another subject. Tou have companies nowadays that build towers and they promise these municipalities that everyone can go on that one tower. That's not necessarily the case either. Each carrier has its own defined grid system. There are going to be cases where the grid systems overlap and you can share towers. So, is it used? If within that search area there's another company's tower, I'd go after it. Absolutely. REPRESENTATIVE BUXTON: Are you familiar with the success that Montgomery y, y ,

REPRES TATI came in there with 35 site locations in one county in Maryland, which is a suburban of Washington, D.C., and because their county ordinance or law requires a strict view of co-location, those 35 sites were reduced to two. In other words, AT&T only had to construct two towers in a grid where their proposal may have included 35 towers because a local government, through their zoning and ordinances, really enforced the co-location aspect of it.

MR. RUBENSTEIN: I can't speak to that because I don't know REPRESENTATIVE BUXTON: How can you argue that grids in service area really come into play when there's such a proliferation of this technology? MR. RUBENSTEIN: Even though there's a proliferation of technology doesn't mean that the same service areas are being covered. I know, for example, the new PCS carriers, typically, 60 percent of their builds are co-location or rooftop placements, as where 40 percent — REPRESENTATIVE BUXTON: They don't need the height. MR. RUBENSTEIN: Exactly. So you have a greater opportunity to be able to do that type of thing. REPRESENTATIVE BUXTON: Since we can almost look upon you as a location person, what would be your testimony then as to what your clients advise you at co-location? MR. RUBENSTEIN: If there is an existing — REPRESENTATIVE BUXTON: Do they prefer it to new construction? MR. RUBENSTEIN: Yes. It's less expensive. Nowadays, everybody is feeling the pinch of the dollar. If they can build a site inexpensively, they'll do it, absolutely. REPRESENTATIVE BUXTON: No further questions. CHAIRMAN SEMMEL: Representative Lloyd. REPRESENTATIVE LLOYD: Thank you, Mr. Chairman. The issue of co-location, you indicated it cost less to co-locate so your clients have an incentive to want to do that. In Connecticut there's an added incentive because, apparently, the regulatory review, if y u ar g g g ,

volve y u g g p up a new tower. wnat happens if one of your clien s wants to go onto a tower which was put up by one o ismj compe i o , a ompe 1 or s y , go po you on i y at p y not considere , your competi s tower o y r towers are not considered to be common carriers, is that correct?

MR. RUBENSTEIN: Right. REPRESENTATIVE LLOYD: I'm familiar with the cable television that there is a requirement, I believe it started in Washington and it states through the Public Utility Commission operates, I'm not sure if it mediation or arbitration, but there's a process to decide when the electric company, or I guess the telephone company wants to charge more to put the cable line on, the cable company thinks they ought to have to pay and there's a process over here to decide. But there's nothing in place similar to that to these types of towers. MR. RUBENSTEIN: I believe the Telecommunications Reform Act covers that with power companies, utilities of that nature. I'm pretty sure. I don't know 100 percent, but I thought that the Telecommunication Reform Act covered wireless carriers in locating on a utility pole, line, and so on and so forth. REPRESENTATIVE LLOYD: On utilities, yes. MR. RUBENSTEIN: With a competitor. And if they say no, go pound salt, what do you do? You have to build a site. REPRESENTATIVE LLOYD: One of the thoughts — MR. RUBENSTEIN: Or you go in front of the local municipality when it comes time for approvals, whatever permits you need to get like if you have to get a special exception or additional use. The question is, why aren't you going on AT&T's tower? You simply tell them and you document it. Everything is done via paper. We've approached them. We believe that they can support our antennas. They've denied us. REPRESENTATIVE LLOYD: Should we pass a statute that says they may not deny as long as we have a procedure for assuring they are fairly compensated for whatever cost they have? MR. RUBENSTEIN: I don't believe so, only because, there are a few different reasons. You would not force a McDonald's to co-locate next to a Burger King. These people are competitors. They're selling service. They're competitors. The last I looked this was America and there's competition, free market, the whole deal. That's all part of it. REPRESENTATIVE LLOYD: Let's not push that particular argument too far. MR. RUBENSTEIN: That's all part of it. REPRESENTATIVE LLOYD: This is an industry, which until 1984 or '86 was a regulated industry for the Public Utility Commission. This was an industry in which the Pennsylvania General Assembly had to enact legislation to deregulate. We deregulated the telecommunication industry. Some of us aren't happy with that and weren't in support of that. So, Suggest that somehow this is mom and apple pie and the America flag I think pushes this argument a bit too far.

MR. RUBENSTEIN: But it's the same type of scenario where it is competition. You're selling whether or not your service is in that certain market or not. REPRESENTATIVE LLOYD: Cable television is not regulated by state government. That's competitive. But yet, the Federal Communication Commission says that if I'm a cable TV carrier and I want to put my wire on a GPU pole and GPU doesn't want to let me do that, GPU has nothing to say about it, and they're not even a competitor of mine. MR. RUBENSTEIN: The FCC has auctioned off licenses. There could be a potential of a carrier so there is competition/ or there will be competition in the future. REPRESENTATIVE LLOYD: I'm not making myself clear. In that instance, it's a situation in which a noncompetitor is forced to be a common carrier for somebody who is not even in the same business. I assume that that's been challenged in the courts and upheld because the process has been going on for 10 years or so. What I don't understand is, why that is such an accordant idea to the cellular industry because, it would seem to me that if it can save money and if it can save you hassle because now the people say, well, I've got one tower instead of five, I'm happier, then everybody walks away as a winner. All I'm looking for, is there a way to construct that so we can have a fair procedure? I don't expect them to let them on their tower for free. I don't expect them to let them on their tower if they think it doesn't comply with the FCC environmental rules. Is there not some way that we can require that, if they are adequately compensated, that they let somebody else co-locate?

MR. RUBENSTEIN: I can't answer that.

That's obviously your decisions to make. I would not be for that, though, because it's just an increase in the regulation on the industry.

REPRESENTATIVE LLOYD: Let me move to a different issue. That's this whole question of public utility. I listened to your response and I'm not an expert on local government law in zoning by any stretch of the imagination.

What is the significance of your being able to call yourself a public utility?

MR. RUBENSTEIN: Again, it's how the local ordinance defines you. That's all.

REPRESENTATIVE LLOYD: Does it get you eminent domain? There's an ordinance here that says you can't have any structure above a certain height, but if you're a public utility you don't have to comply. What's the practical effect?

MR. RUBENSTEIN: Again, it's how the ordinance is written. Some local ordinances that I've come across, they do regulate even the height of public utility structures. It's really defined by that ordinance. REPRESENTATIVE LLOYD: It has nothing to do with eminent domain? MR. RUBENSTEIN: I can't answer that. I'm not that schooled on PUC and what that allows you. REPRESENTATIVE LLOYD: I'm concerned about who has — You make a valid point with regard to NIMBYism. Fortunately, this has not been a problem in my area and Representative Buxton's area, but it might be. I think you are right in saying we ought not make decisions based on incorrect science. But, I think you are unfair in your criticism of boroughs and townships. These are people, by and large, who aren't getting paid. If they're getting paid they're getting paid pittance. They don't understand all this stuff. I looked at that overhead that the gentleman from Connecticut was showing. I looked through his testimony. I heard what he said. I wouldn't have the vaguest idea how to start plotting those various curves and I have had seven years of higher education. Most of these people who are sitting at borough council meeting or township supervisors' meeting are listening to their constituents beat up on them. Our kids are going to get fried if you let this be on the school building. They have no way to know other than trust me. They never saw you before in their lives. You are an outsider. They don't have any idea what you're all about. You're there to make money. What I'm interested in finding, isn't there somebody in state government to whom they can turn and say, here's our problem. Give us an analysis. Are they in compliance with the FCC or are they not? I recognize that we don't have the legal right, regardless of the argument somebody might want to make about whether the federal standards are adequate or whether they are not. That's an argument if they don't like they have to run for Congress because they are set by the federal government. But, we do have the right to assure compliance. Is there some way we can offer to those boroughs and townships the expertise that they would need to look at what you're proposing to come away with, yes, this is okay or no, it's not okay? MR. RUBENSTEIN: The short answer is — Within the Commonwealth? I have no idea of what the state would be able to offer to be able to ensure compliance. I've worked with five municipalities in developing their ordinance when it did not cover wireless communication. In all four cases, and the most recent one is Centre region where they administer to various communities within Centre region plan, out in State College, where we developed a check and balance. I have always been a proponent that the carrier has to prove that they need to be in that particular location. You have to show the propagation analysis. You have to show how it interacts with the regional sites. You have to prove that you are there. The statewide jurisdiction, I think it falls on the local government because it happens. As a model ordinance, maybe Centre Region Planning will use this as a model ordinance and get it out to the rest of the communities and maybe it can be adopted. I know when I'm going into a municipality and there is nothing there, we don't want to challenge an ordinance. You don't want to say, hey, you exclude us. We can go wherever we want. We sit down and say, okay, let's develop this text amendment to include wireless communication. It's a check-and-balance thing. REPRESENTATIVE LLOYD: But you're not dealing with any borough or state government, whether DEP or some other agency of state government, which you would say, yeah, these guys are technical experts. They can look at what we are proposing and they could tell people this is safe or this is not safe. MR. RUBENSTEIN: other than NEPA and looking at it from that standpoint and doing a Phase 1 analysis to ensure that there's no hazardous materials. It's not on a historical registered area like we did outside of Gettysburg, no. I don't know of any other. REPRESENTATIVE LLOYD: What I'm asking is, for you to understand where those local governments are coining from and where legislators who confront this are coming from, stand up in front of a room of people who are unhappy about something and they want action. They want somebody to tell them that this is safe or not safe. Now, some of them won't believe it even if they are told it's safe. I understand that. I have been in enough of these meetings over the years that I appreciate that. You just can't just say, whoops, sorry. Nobody in the State of Pennsylvania is qualified to do this unless you want to go out and hire an expert. And it sounds like all the experts work where the money is, which is for the companies that want to put up towers. The local township, those guys don't know anything about this. I appreciate the fact you say you ought to have to prove compliance, but you could put any one of these documents in front of most sets of township supervisors and they wouldn't have the vaguest idea whether you qualify or whether you were in compliance or not. If we want local control, then we have to somehow make the expertise available to the local people so they can make that decision which you think is a decision that ultimately has to be that you are in compliance. MR. RUBENSTEIN: Right. I understand what you're saying. Believe me, I've been to enough of those hearings where you have people screaming and yelling, and they don't believe anything you tell them. These people in the community are potential customers of the carrier that's coming in, so they're not going to build a site. His estimate was a little high, but they're not going to spend a half million dollars on a site that they don't need. That's a lot of money. REPRESENTATIVE LLOYD: I'm not arguing the need. I assume that. MR. RUBENSTEIN: They're going to show through the propagation studies that it is, in fact, needed. They are not going to build one unless it's needed. REPRESENTATIVE LLOYD: I'm certainly not even questioning that at all. Maybe somebody else, a subsequent witness can help me. I'm just looking for help. Standing in front of that audience and being able to tell them something that I'm going to get on the phone tomorrow and I'm going to call somebody, whether that's somebody at Penn State; whether that's somebody at DEP who can assure this community that this is safe. Even if it's the case that a percentage of the people don't ultimately believe it, I need to be assured as a public official that I'm not being flimflam.

But, you need to be reasonable. You need to be able to show people that the government is trying to make sure everybody is protected. If you can come up with something between now and the time we write this report,

I certainly would be interested in seeing it.

Thank you, Mr. Chairman.

REPRESENTATIVE COLAIZZO: No questions.

CHAIRMAN SEMMEL: Thank you.

MR. RUBENSTEIN: Thank you.

CHAIRMAN SEMMEL: We'll now take a five to 10-minute recess.

(Short recess occurred)

CHAIRMAN SEMMEL: We have Joseph Fitzpatrick, Junior, Fitzpatrick, Lentz and Bubba, Pennsylvania Wireless Carriers Coalition. MR. FITZPATRICK: Good afternoon, Mr. Chairman, and committee members: My name is Joe Fitzpatrick. I'm a private attorney. I have a land development and land use practice. Our office is in Lehigh Valley between Allentown and Bethlehem. I'm a life-long Pennsylvania resident. My primary client in this area is Vanguard Cellular Systems, which many of you know as Cellular One. I am here today on their behalf, but only to the extent that Vanguard Cellular System is a member of the Pennsylvania Wireless Carriers Coalition. The 10 companies who I think pretty well represent the major wireless carriers interest in the Commonwealth are listed in my materials. I would note that as a private attorney I'm in the trenches, so to speak. I'm at the township meetings and the zoning board meetings and borough council meetings that were referenced earlier. I'd also note the thrust of my practice is not just the wireless practice. We represent retailers, quarry operators, road builders, housing and industrial concerns as well. The coalition has me here today hopefully to present a voice of reason to lay out the scenery, if you would, in Pennsylvania from a development and wireless providers standpoint. I'd say in the last four years, personally and with a couple of attorneys in my firm working in the cellular industry, we probably dealt with 120 plus municipalities all in eastern Pennsylvania, east of Harrisburg to the New Jersey line, up to Scranton and Susquehanna County, down to northern Philadelphia suburbs. I hope my perspective as someone in the trenches helps the House deliberation on H.R. 111. I'm going to try and keep my comments very practical, but I think it's necessary to bring in both statutory and some of the case law considerations that dictate how carriers react in the marketplace. There is for good or for bad an emerging level, if you will, as we meet here today. Municipalities are being forced to deal with this. It's fair to say the technology got ahead of the law, but I think that's evening out somewhat in the last year certainly, and perhaps the last couple of years. If I can speak in generalities, I think wireless communication providers, and now more so than 5 or 10 years ago, have become cognizant of local concerns associated with wireless facility sitings from the standpoint of visual and aesthetic, structural integrity, the public safety issue and the need to avoid proliferation of free-standing support structures, both the lattice towers and monopoles.

The conclusion of my testimony and the materials embodied pretty clearly is that, I would urge the committee to report back that new supplemental statewide legislation simply is not necessary in view of the present legal and legislative environment. That's not to say no action or direction should be taken whatsoever. I would suggest that another tier of legislation would serve to create yet another level of confusion, perhaps misunderstanding and litigation. That's not necessary if the existing legislative and regulatory scenario is utilized intelligently. When I say legislative and regulatory scenario, I'm talking about on a local level, on a state level and on a federal level because this industry impacts all three of those levels. The fact of the matter is, it remains very difficult to locate wireless communication facilities in most Pennsylvania communities, certainly in the eastern half of the state that I'm familiar with, partly because of the out-of-date ordinances; partly because of the lack of technical expertise Representative Lloyd referred to, which precludes a prompt amendment of ordinances. Partly, it's difficult to locate wireless communication facilities in Pennsylvania because of public and municipal misinformation and misunderstanding. And largely it's difficult because of the very precise and restrictive science of establishing transmission facilities locations. Trying to create safe, efficient and adequate coverage and service levels of telecommunication of wireless services is tough right now. One of the recurring patterns that I have seen in about five years and that I've heard today and investigating the history of H.R. Ill is that/ horror stories, the worse- case examples tend to jump out, catch the public eye, result in legislative action whether it's at a municipal body level, whether at state or federal level. Local news coverage loves to stoke the fires of these cellular PCS horror stories. I don't think this panel is ignoring the fact that Pennsylvania needs and benefits from these communication services. Great strides have been made in recent years in getting Pennsylvania's systems more up to snuff than it had been in prior years, but I think it's critical both for industry representatives and I'm here as I say on behalf of 10 carriers today doing business in Pennsylvania. It's important for the municipal associations and local government interest, and it's important to the state legislature not to force legislation which is primarily reactionary; not to overlook the tools at our disposal to work out reasonable solutions and reasonable conclusions to the recurring situation. I've broken down my testimony outline. I'll follow it generally into 4 major issue. The first point that I raise is that, existing legislation is adequate to ensure local controls over wireless communication facilities. I start with our Bible, which is the MPC, the Municipalities Planning Code. As you know, it covers zoning and subdivision land development, both substantively in terms of what municipalities should do, and it's an enabling statue. It lets the local municipalities create their own rules, respond to community needs, physical conditions, characteristics and restrictions in different parts of the state or from one town line to another. Business, resident profiles and even the adequacy of communication services can and sometimes are handled by these ordinances. In our part of the state, quite a few municipalities have adopted communication amendments to their ordinances, particularly wireless facility amendments. And that is, I have to concede, a function of the fact that I'm from a fairly developed part of the state. I'm right on the eastern half of Lehigh County which Representative Semmel's territory includes. There's a little bit of regional schizophrenia there. We still have Amish farmers literally driving past executives going to Air Products who are developing state-of-the-art technology 5 minutes away. There's a real mix. I try to be sensitive to it, and yet I don't think that's just Lehigh County. I think that's Pennsylvania. That's why MPC and the power of local municipalities to appropriately enact ordinances on a community's needs and a community requirement basis has worked beautifully for a long time. I'll hit on a point that's been stressed by other witnesses. I know in the June hearing this was addressed. But federal Telecommunications Act of 1996, the Telecom Act, Section 704, explicitly preserved municipal zoning and land development controls. Recognizing what the state legislature recognized a generation and a half ago in enacting the MPC is that, when it comes to land use and development—and that's what we are talking about. We are not trying to call it something else—one size fits all legislation is a dangerous thing. You've got to respect the needs, characteristics, personality of a community, its economic, as well as its terrain and geographic characteristics. It's our position—that is, the coalition's position—that a new layer of statewide land development and zoning legislation is unnecessary and, unfortunately, would create an even more unwieldy regulatory scheme in the Commonwealth. I think in this case more is .not better. Again, I want to stress that's not to say don't do anything. I don't want to dwell on horror stories. I don't want to allow it to be thought that the wireless carriers or even local development attorneys such as myself are out there trying to prey on uninformed, perhaps fearful local supervisors or borough councilmen. But, for every horror story that a legislator or a local government official could throw out about what the cellular company did to us or how they stuck it to us, it doesn't get any sympathy. It's not worth spending the money for ink to put it in the newspaper. But, there are an equivalent number of horror stories where communities continue to have a complete lack, if not inadequate cellular and now to a growing extent inadequate PCS service because municipalities overreact. There is, indeed, hostility to any kind of a wireless development in certain communities and in certain parts of the state. I asked the question whether new special legislation would eliminate this situation? Does it have the potential to be abused or misused by local government as simply another barrier to effective provision of telecommunication services? Under this last point in which I would argue that the existing legislative framework is adequate, the MPC and every single community subdivision and land development and zoning ordinance have adequate steps to amend ordinances for wireless communication facilities, whether it's a very specific or a broad-brush approach. I have seen them both taken. The Federal Telecom Act of '96 reinforces this right. I don't think we should lose sight of it. I'd like secondly to talk a little bit about the public exemption argument. I call it a false alarm in my materials. My materials react to the testimony submitted by the Pennsylvania State Association of Township Supervisors, which, in fairness, trying to be as objective as I can be, I think is a reactionary response. I will tell you that personally on, perhaps, half a dozen occasions I have successfully utilized—I won't say argue—the public utility exemption argument. That argument has been one I really haven't used in the last year or so because of the some of the court cases that have come down, Baldwin and O'Hara. But there have been municipalities where an ordinance, specific definition, does not refer to the Pennsylvania Public Utilities Commission or to Section 619 of the MPC which grants the zoning exemption to public utilities regulated by the PUC. But, the courts have said something and they have said, look, you can't use this blanket exemption. And even if carriers weren't responsible providers of a valuable service, albeit for profit, they are not stupid business people. You don't make a mess and expect to come back another day and be treated properly. I say this because, I think at this point, in 1997, the public utility exemption issue as far as wireless carrier goes it's a red herring. There are municipalities where the ordinance contemplates that the public utility is with a small p and small u. It contemplates a broader scope of services than those regulated by the PUC. But in all candor, I think that's well under the quarter of the ordinances that I have seen in the eastern part of the state. On behalf of the coalition it's fair to say we respectfully disagree with the Township Supervisors Association. We think that this threat on behalf of an unnecessary public service—I think that's what they called the industry—is really short-term overreaction. It's fueled by a small handful of well-publicized, often misunderstood siting controversies. I'm not saying everybody on this side of the fence has been good. I'm not saying everybody on the municipal side has been good or reasonable. Wireless carriers have not uniformly asked to be classified as a public utility either under the PUC where you clearly have a legal loser. They're not public utilities as defined by the code, nor are we asking that under the MPC. The rare instances where this still occurs is in the instances where there's a generic definition of public utility, and, indeed, a solicitor or township board may feel that given lapses or absence of stringent definition in an ordinance that if public utility installations, if substations, if high-tension power lines are allowed to be in a certain location, that's probably where we want to see wireless communication facilities. That's a handful and that's not to say they shouldn't have a better regulatory scenario. I am concerned as an attorney that a call for a state law on this particular subject does smack a special legislation.' It does divert local zoning and land development regulation away from the governing bodies, and it really has a potential to unduly limit these federally regulated telecommunication providers to introduce and improve these emerging communication technologies throughout the Commonwealth. I have already indicated, and I don't want to repeat the testimony, it's not standard operating procedure to insist that a carrier be classified as a public utility for zoning purposes. That position, when it's still taken and it's rare, is typically a fall-back position employed when ordinances completely failed to address any kind of telecommunication or communication facility, or when ordinances address such facility in a way which effectively prohibits their placement. Sometimes that fall-back position of the public utility argument is necessary when a municipal official or zoning officer is blatantly antagonistic toward the use, making it clear that we don't want your facilities here in our town. Wireless carriers are not foolish. They're not trying to beat or bamboozle local regulatory that we've got to come back another day and deal with the same municipal officials who I know firsthand talk to each other. The borough manager calls the township manager, who talks to next township zoning officer. Sometimes you get the sense going into meetings no matter how well thought out, how unobtrusive a cell site, you have a posse on your tail. There have been instances, and I don't want to deal on horror stories where one municipal official suggest a wireless site be slid a couple hundred feet across municipal boundaries to basically dump the zoning problem into another municipality's lap with the comment, you're absolutely right. We've got lousy service on the interstate, but the borough manager is better equipped to handle this mess than I am right now. I would say at least four or five times that has happened in the last four years. Right now—it's not in my material— there's a Pocono municipality with a couple of large state highways and an interstate coursing through it that are suggesting to one of my clients that six to ten 30-foot high cellular towers could be built and re-engineered so that nothing would appear above the tree line and cutting out any testimony that talks about the fact that trees and leaves block transmission. You've got the certain antagonism to the science and the precision of engineering that's behind the technology. Yet, to say do nothing and let them learn on their own is not the answer either. Ordinances frequently have some provision for analogous uses too, telecommunication facilities, typically radio transmission tower communication facilities, utility towers or poles and the like are listed as conditional or special exception uses at least in my part of the state. I could draw analogies to uses that didn't exist 10 or 15 years ago that still aren't specifically addressed, although perhaps not as controversial, but congregate living or assistant living for elderly was a concept in some very bright people's mind 12 or 15 years ago, certainly not in most zoning ordinances as of a couple years ago. But, municipalities adapted. Where do we allow convalescent homes? Where do we allow nursing homes? I know that's a simple analogy and it begs to be attacked. But, municipalities have adjusted to it. I think with education municipalities can adjust to wireless technology. A number of municipalities in our areas have adopted amendments specifically addressed. Even where these regulations are tough on a carrier to locate, at least there's a set of consistent ground rules. That's better than no regulation at all combined with municipality hostility. In my materials I cite four cases that are representative of where our courts have gone, but the fact of the matter is, there's not one solid rule that says municipalities are or are not public utilities. There is an emerging rule that says, look at local ordinance. Look at how the local government interprets those ordinances and go accordingly. We are not going to lay down a blanket rule here. That is indifference to the local government's right to legislate land use. Wireless Telecommunication Carriers have not asked the legislation to formally include them on a statewide basis as a public utility for zoning purposes. In response to the Township Supervisors Association and all their municipal government counterparts, they should encourage municipalities to amend their ordinances to provide for these facilities and sitings. Municipalities need to set aside reasonable land areas in appropriate zoning districts to achieve this purpose. The Wireless Carriers can be of tremendous assistance. We're not enemies here. With the Township Association, with the Borough Association, the resources are present. Maybe it requires a House committee and subcommittee hearing to have the offer made, but the coalition members would like to sit down with the same municipal associations calling for statewide legislation. Whether it's a model ordinance, whether it's regional education, the people with the knowledge being the industry, the people with the power being governmental officials can come together in a short period of time and address this. I note that after a bloody battle I had with the City of Scranton in the fall and winter of 1995, resulting unfortunately in litigation, the city asked Vanguard, Cellular One, and one of the local PCS carriers to come in, and we now have a cooperative planning commission amendment procedure going on, whereby, the Scranton area and its suburb, which historically has been one of the most underserved with telecommunications, is taking a step forward, realizing they can't work on overreaction to a situation. The carriers recognize that we can't beat up a municipality that isn't informed about the technology. My materials indicate you have got about 42 million wireless service subscribers in the United States, with Pennsylvania being one of the largest block of statewide consumers. That number is now up to about 50 million wireless subscribers in the United States. We are up there in the top half dozen of most populace states, and our user block represents that population. In just closing out my testimony comments, I do note that I had the pleasure of appearing a year and a half ago before the Agriculture Committee of the House and also at some Senate considerations of a bill. I know Representative Lloyd and Representative Colaizzo were on the Agriculture Committee at the time seeking some relief from the Clean and Green Laws, Act 319 and 515, which prohibit any change of use in farmed and rural properties in Pennsylvania which are the beneficiaries of covenants that keep their tax assessment down. As recently as a little over a year ago, the legislature made law and the Governor signed law adopting that limited exemption that will allow wireless communications to be provided throughout the most underserved portions of the Commonwealth, the rural portions. I think that that was a statement of our legislature that this is a good thing. It's clearly a recognition that wireless communications is a necessary and a good thing for the Commonwealth. With respect to land use and statewide development or zoning controls on telecommunication facilities, I think more is better. Pardon me, I think more is not better; less is better. We've already got the mechanism in place. Lastly, I'm sure this panel is very familiar with the Federal Telecom Act of '96, and particularly Section 704, but that law clearly preserves and protects local land use controls and indicates that nothing in this act shall limit or affect the authority of a state or local government or instrumentality thereof over decisions regarding placement, construction and modification of personal wireless service facilities. It sets forth a national law and policy. It realizes — This is the federal law realizes that wireless telecommunication is not a mere parochial issue; it's not a mere statewide issue. The telecommunication act also constrains what I would call hostile municipalities where it's necessary because that act provides that local ordinances shall not prohibit or have the effect of prohibiting wireless communication, nor shall it unreasonably discriminate among wireless providers. There's a provision in the act that was alluded to earlier, but the FCC is suppose to provide technical support to states to assist in location of telecommunications services on state-owned property. I've attached to my materials copies of Section 704, the federal law, as well as Acts 50 and 51 of 1996 by which the legislature amended 515 and 319. In my conclusions I note that the MPC has been very versatile and a very effective statute for a generation and a half. It handles mundane developments like single-family homes, schools, neighborhood shopping areas just as it does controversial uses like wireless communication facilities. We have dealt with group homes, landfills, government- assisted housing and MPC has done the job. It would appear to the extent siting is the subject of a statute, it smacks, as I said, a special legislation. That function is provided for under the MPC as well as the multitude of codes that we have in the Commonwealth. When I'm called not only for a wireless carrier, but for a retail concern or a housing developer or even to put in a public works project, in addition to checking zoning and subdivision ordinances, you go to the individual codes of a township, first or second class of a borough, depending on what city you are in of the city code and find out specifically what powers or generally what powers the City Council or supervisors have. There's a tremendous overlay of doing business in Pennsylvania at the local level. For that reason I don't think this legislation would necessarily help that. I believe in addition to harming the development scenario for telecommunication services in the Commonwealth by statewide blanket legislation, any type of legislative response, which is a response to overreaction of horror stories, widespread claims this public utility exemption is being abused are ill-advised. I don't think that sort of response by the legislature would lead to a reasonable or permanent solution to regulating the siting of wireless facilities. I conclude by respectfully requesting that legislation on a statewide basis regarding wireless communication facilities not be enacted. As I started out, that request is not to say nothing needs to be done. Thank you. CHAIRMAN SEMMEL: Representative Buxton. REPRESENTATIVE BUXTON: Thank you. Mr. Fitzpatrick, you seem to have a lot of confidence in the Pennsylvania Municipal Planning Code. Do you believe that's a viable tool for our local governments to address any concerns associated with the telecommunication industry?

MR. FITZPATRICK: No. I think that Pennsylvania Municipalities Code is a very viable enabling statute to allow municipalities to regulate. In itself it doesn't address these issues. REPRESENTATIVE BUXTON: I know that. MR. FITZPATRICK: Just as it doesn't address landfills or group homes. REPRESENTATIVE BUXTON: You kept referring to the code and we know it's enabling legislation. You seem to be very much in favor of what that code provides to our local municipalities in order to address certain issues dealing with the telecommunication issue. MR. FITZPATRICK: That's correct. REPRESENTATIVE BUXTON: Are you aware that when the Telecommunication Act was originally drafted that it provided total preemption of state local law? MR. FITZPATRICK: I saw language in working drafts, some of which were promulgated by the industry and some of which were promulgated by private interests that were kicked around, and I know that there were — as with any federal or state bill there were conflicting interests, but that's not the law. REPRESENTATIVE BUXTON: Right. The National League of Cities felt a major victory on their part was the preservation of certain state and local jurisdiction under this new act. Beyond that, that any appeals, adverse appeals would be heard at the local court level and not somewhere in Washington D.C. MR. FITZPATRICK: I think there's two things you said there, Representative Buxton. The first one I absolutely agree with because the Telecom Act 78 begins by saying, nothing in this act will limit state or local control over placement, construction and modification of personal wireless service facilities. But then the statute goes on to conclude that in the event that a state or local government does improperly prohibit the placement, construction and modification, the dispute can go on an expedited basis to a competent court, and that includes the federal court as well as county. I'm not trying to split hairs. I'm just realizing that with an interplay of both industry and the National League of Cities. REPRESENTATIVE BUXTON: I'm not arguing. What I am getting to here is a major concern has recently developed, in that, the regulations that I alluded to earlier that came out of the FCC last week seemed to be going in the direction now, and our information leads us to believe they are industry directed. For the FCC to take another look at this preemption situation, and perhaps — They are seeking comment now I believe. They appear to be leaning in the direction where the victory, so to speak, that was won in the Act of '96 may be short-lived if a rule or regulation comes out in the near future indicating that state and local governments, indeed, are not going to have any control whatsoever over this; that the total authority will vest with the FCC. What would be your reaction to that scenario? And, as I indicated, our information is, it's industry driven. Are any of the companies that you represent or are you personally involved in any dealings with the FCC to overturn the state and local preemption provisions of the act? MR. FITZPATRICK: I think there was a lot of questions in there. I'll go backwards. The answer is no. To my knowledge, I'm not aware of any client, industry-driven change to overrule that. I think your statement that this in the comment stage is very accurate. It's in the comment stage. I don't know that any of those comments you characterized as being industry driven will go any further than they are now. I'm not particularly qualified to address them. But, I do believe that there is a balancing act in the current Telecom Act that the recognition of state and local zoning power in the federal act is an important one. I'm not sure that reaction on a state-by-state basis is the appropriate way to deal with the technology, a science that doesn't by its very nature respect the municipal boundary line. I listened with a lot of interest to the gentleman from Connecticut. The scenario they have in Connecticut is an interesting one. It might work in Delaware too where you've got a state with a hundred towers I think he said in the inventory, roughly equivalent to the handfuls of some of our counties and operating almost like a multi-county government, because we are talking about shear physical size within the science of locating sites. I'm diverting a little bit from where you were going, but I know there's positions being taken. I know the National League Of Cities is involved. I'm primarily a Pennsylvania attorney with experience in the siting and the municipal end of things. I think if I went much further I would be speaking out of school. REPRESENTATIVE BUXTON: But none of the 10? MR. FITZPATRICK: I can't speak for all 10. I don't know. REPRESENTATIVE BUXTON: The court cases that you cited in your testimony in the question of the public utility, I didn't read specifically there, but are you indicating in your testimony that unless a local ordinance is not clear in their definition of a local utility, wireless communications are not subject — or they cannot use the argument they are a public utility and, therefore, exempt from local ordinance?

MR. FITZPATRICK: No, I'm not suggesting that at all. I think that a developer — Let's forget wireless for the moment. But, any developer going into a municipality has to go in with the assumption that a use — a lawful use is covered, you only need to pick up — you name a town, pick up a zoning ordinance and they're going to tell you what an adult cabaret or magazine shop is in shocking detail. You know what I'm saying. From my own experience, probably well over a year since that public utility argument has been made, because there are typically analogous uses, the industry as a whole, carriers individually, local real estate representatives individually don't want to make law. They don't want to litigate. They don't- want to make themselves unpopular with municipal government and the residents of municipalities who are their customer base. It's not smart business to go in and try to jam that argument on a wholesale basis. I am not saying in my materials that if the use is not specifically defined, the carriers can go in or should go in and argue they're public utilities. What I am saying is, there are certain municipalities that have a generic definition of public utility. The interpretation that it's generic is joined by township supervisors, a zoning officer, a solicitor. This is really the exception; not the rule. Unfortunately, exceptions, factual exceptions end up in the case books. Bad facts make bad law. Maybe that's why we're here today. I think well over a hundred, and I should have conducted a count, but maybe in the vicinity of 120 to 140 sites in which we have been involved in the eastern half of the state, under 10 percent of them were what I would call controversial. I'm not talking litigation. I'm talking about the kind of controversies where people come out and object on some meaningful level. The short answer is no, I'm not suggesting that the public utility exemption is available if the definition isn't clear or is open. REPRESENTATIVE BUXTON: You indicated in your testimony that you investigated the background into House Resolution 111. Meaning, I suspect, that you realize the intent in introducing House Resolution 111? MR. FITZPATRICK: I believe so. I pulled articles from some of the — REPRESENTATIVE BUXTON: From the citizens group. The intent of House Resolution 111 is not necessarily to write any laws or regulations in the Commonwealth, but to give the legislature an opportunity to learn some more about this industry that even you admit is getting somewhat ahead of its time and what the common citizen understands about the industry. Whether legislation is recommended or not has still yet to be determined. But, the resolution in no way, and of course your testimony indicates, perhaps, that it may in some way lead to some type of new state laws, is not the intent of the resolution. However, after the testimony that we've received, including yours today, we may reconsider whether we need to enact some amendments to the Pennsylvania Municipalities Code, or whatever. That's what we are here to find out. We have citizens who elect us to office, and we run every two years. Unfortunately, that doesn't give us a lot of time to explain things, particularly in this type of emotional situation. Therefore, we hope that we can gain as much insight as possible into this technology, what it means today, and especially what it means into the future to try to alleviate some of the concerns that we find back in our home districts. Thanks. MR. FITZPATRICK: Thank you. CHAIRMAN SEMMEL: Representative Lloyd. REPRESENTATIVE LLOYD: Thank you, Mr. Chairman. In order to try to test whether we can solve all these problems without legislation, I have a series of questions. Under the Municipal Planning Code, what happens if a township doesn't have a zoning ordinance? Does it have the option to pass some ordinance to regulate tower siting, or does that fall because it's some type of special pleading? MR. FITZPATRICK: First part of the question, what happens if it doesn't have an ordinance? That kicks you to the direction about county planning commissions and countywide ordinances. That's one avenue.

REPRESENTATIVE LLOYD: I want to go to that one next. MR. FITZPATRICK: The second, you're asking me for a legal opinion? I don't think it's illegal. REPRESENTATIVE LLOYD: You don't think it is illegal? MR. FITZPATRICK: I do not. REPRESENTATIVE LLOYD: Because it's very common in my area. A number of years ago we had a lot of concern about landfills and about Philadelphia sewage sludge being spread on strip mines. We were concerned about the low-level radioactive waste disposal site. Everybody was absolutely convinced it was going to be Somerset County. A lot of townships went out and passed ordinances that you aren't allowed to have this; you aren't allowed to have that or allowed to have this unless. We have one attorney in the county who used to work with DEP who drafted like a two or three-page ordinance on some of these things. That is something that is not, at least immediately, in violation of either the State Constitution or Municipality Planning Code. MR. FITZPATRICK: I don't believe it is. REPRESENTATIVE LLOYD: Going to the county, that really is the whirl in Somerset County because a lot of townships don't have any zoning at all. Some which do are kind of pretty — MR. FITZPATRICK: Archaic. REPRESENTATIVE LLOYD: Yeah. The county does do some zoning. We have interchange zoning because of some limited access highways. I think that's why in that example that the previous witness gave of the airport in Somerset, I think that's how the county got into it because the area of the airport is within whatever the radius from the interchange of 219 is. Can you explain to me what happens in my county if one of your clients wants to put a tower in a township which has no zoning and hasn't adopted one of these other types of ordinances? What authority does the county have? MR. FITZPATRICK: I can honestly say in the one-third or so of the state, the eastern one-third of the state where I operate, I have not personally come up against that situation. I realize it's different in Somerset County in your constituency. I can answer you that for Vanguard Cellular, Cellular One, we had a situation arise. One time I can recall this arising in Susquehanna County, Montrose area, which is very rural, mountainous. We went in the first instance to the township and applied for a building permit, because there's no question, at least from this one carrier's viewpoint and philosophy that these are land developments and you've got to go in and get at a minimum a building permit. We went to the Montrose Planning Commission, which did have a county zoning ordinance which contemplated a multitude of uses, and one was fairly close to communication type facilities. We presented the site plan, land development and subdivision plan and went through the paces as any other developer would. That's an ideal situation. You had a willing carrier and a prepared county. I can't speculate as to what happens when there's not one in place. REPRESENTATIVE LLOYD: But the bottom line is, it would be your legal opinion that the Municipal Planning Code would allow both municipalities and counties to regulate the siting? You don't need to change state law to make that happen? MR. FITZPATRICK: No, I don't think you need to change state law at all. REPRESENTATIVE LLOYD: The issue of removal cost was raised earlier today. I think Mr. Buxton said there has been some speculation that 10 years from now we may have all towers out there, and technologically from a business standpoint obsolete. The gentleman from Connecticut said they tried to address that on a case-by-case basis. Would it be legal for a municipality or a county to say that in exchange for getting the building permit or exchange of getting whatever other piece of paper that you have to get from us to put up that tower, you must agree if this tower is no longer being used that you will pay for the cost of removal? MR. FITZPATRICK: I'll tell you that's one I haven't thought of. I don't see why it would be illegal. I can tell you that it's standard practice in the leasing arrangements to offer to the landlord that the tower will be removed at the end of the lease term. The interesting side to that, and there's so many angles to this part of the business that I could go off on a couple tangents. I'll try to stay close to your question. The interesting part is that, on a couple of dozen occasions cell site landlords have said, or at the landlord's option the site shall remain in place because they realize a structure of that size and height is a valuable economic tool to the landlord where they don't want it removed. Where that isn't the case, the lease provisions completely administered privately provide for the towers to be removed. I don't see that there's an illegality associated with the kind of condition you just mentioned, Representative Lloyd. REPRESENTATIVE LLOYD: The issue of co-location, if the municipality says we won't give you a building code unless you can demonstrate to us that co-location is not a possibility, is that something that you think is within their power? MR. FITZPATRICK: Before I could speculate whether it's within their power, I ask the question whether it's within their capability. The reason I say that is a prior witness and others talked about the search ring or the search area. The assumption there is that competitor A tower is located within the search ring for competitor B. Again, like the public utility exemption argument, that's the exception rather than the rule. I think mandatory co-location is a dangerous thing from a fair trade standpoint, from a business practice standpoint. However, I would note that in the municipality where I have been very involved with a couple, in perhaps three sites in the last couple years, they do have a wireless communication ordinance which requires demonstration that a tall structure survey has been conducted by the company. That covers water towers, interstate billboards, and so forth, and that the carriers made commercially reasonable efforts to utilize tall structures. That is not a bad regulation for a wireless carrier to deal with because they are not in the tower building business. They are in the antenna placement business. They don't want to build the towers. Forcing co-location with a competitor, there's a handful of legal issues that strike me outside of land use and development. Requiring a tall structure inventory, that appears to be reasonable. REPRESENTATIVE LLOYD: That brings me to my next question, and that's state buildings and state towers. In my county, I'm trying to remember who owns the tower. Was it the game commission or state police? We have interplay of towers that belong to some state agencies which 911 is using. We just authorized or appropriated in the last budget $7 0 million to a hundred million dollars for an initiative to upgrade radio communications for a variety of state departments. I assume that's state police. I know it's state police. I assume also PennDOT and maybe some other state agencies. To what extent is the State of Pennsylvania trying to aggressively encourage your industry to come on down and use our structures? Let's not build two structures where we could use one. MR. FITZPATRICK: In my own experience? There has not been much communication or incentive from the state to the carrier saying, come and put yourself on our structure. There has, on the other hand, been instances where a number of state agencies or state instrumentalities have come to us and said, we would like to be your landlord, state hospitals, turnpike commission, some gamelands, for instance, but not offering the availability of a tower or a monopole. REPRESENTATIVE LLOYD: Is it maybe that there's something we can do without passing any legislation to encourage, if we in fact are going to build a lot of towers? I don't know if we are. I'm not sure how this upgrade in telecommunication is going to work. If we are going to have to build a lot of towers, it seems to me we ought to be trying to take advantage of everybody out there who is a potential client to be on that tower. MR. FITZPATRICK: It would, as a general proposition, be attractive to the industry because, everything I said about wanting to cooperate with local government aside, it cuts out that tier of involvement and that tier of controversy to go on an existing state structure. REPRESENTATIVE LL07D: A comment with regard to county versus local or county versus municipal regulation. You gave us a couple examples of people trying to slide things over into the next township. One of the advantages of having county governments, at least rural parts of the state, enact some kind of an ordinance on this is that, as practical matter, I would assume if you have a little bit of leeway that you go a little bit this direction or that direction rather than forum shopping, rather than — If co-location is an issue, one tower is in my township and another tower is a couple townships away that dealing with government may be more time consuming and more difficult than dealing with a county government which can look at all of the towers in the county and give a more coordinated response. MR. FITZPATRICK: I can see that being the case particularly in the rural parts of the state. REPRESENTATIVE LLOYD: Which leads to my next question. For me the basic issue here is, I'm willing to let the local people decide whether they want to look at these or whether they don't. I'm not a supporter of a statewide land use plan. But, I do want to be able to assure people these towers are safe. I've had different kind of towers, but transmission lines for electric. I've had farmers come to me and say, my cows won't go under there. If they do milk production drops. Nothing will grow under the towers. I have been in meetings with the electric companies and, of course, they say that's nonsense. I don't know the answer to that. When these tower issues come up, the local officials, state legislators need to be able to say, we have referred this to somebody who is an expert. That person has told us that this meets the federal requirements. What occurs to me is that, maybe there's a way that your industry, together with the local government associations, could fund somebody at Pitt, Penn State, or Carnegie Mellon, one of the universities; somebody in Pennsylvania, if there's not a state employee who has the technical expertise, we either send disputes to them or we send — It's automatic. They review all the applications and they say, yeah, this meets the certification, and then we would have some assurance that there's compliance with the FCC standards. Is that something that you think — MR. FITZPATRICK: I think that's viable. I'll take it back. I think when it comes to lending technological or industrial expertise I believe the carriers that I'm speaking for today with respect to siting are behind that kind of an effort. They are concerned about restrictions on free trade, but in terms of education, health, industrial assistance I think that that's forthcoming. REPRESENTATIVE LLOYD: The last issue I want to ask you about is this whole question about public utility. I had a little conversation during the recess about this. Under the Public Utility Code, the exemption is for mobile, domestic, cellular, radio telecommunication service. The question is to whether PCS fits into that definition or not. Do have an opinion? MR. FITZPATRICK: I don't have an opinion on that. REPRESENTATIVE LLOYD: If there's an argument about that, I guess then you go to the planning code. If PCS does not fit within that exemption, then it is a public utility under the Public Utility Code and, therefore, it qualifies for the public exemption under the Municipal Planning Code and, therefore, it overrides local zoning. I don't know how serious a problem that is. MR. FITZPATRICK: I haven't seen it, Representative Lloyd, although you just made a very persuasive and lawyer argument. REPRESENTATIVE LLOYD: The other part of that which I tried to get an answer before, I think you probably will be able to help me. I don't know how the eminent domain code is written. Public utilities generally have eminent domain power. If the eminent domain code says everybody who is a regulated utility under Title 6 6 has this power or whether it has its own definition, do you know the answer to that? MR. FITZPATRICK: I don't think there's a case decision that nails it down. It's my understanding and my opinion that clearly the FCC regulated wireless carriers don't have power of eminent domain. I'm not aware of any instances in which they've tried to assert it. I don't want to be the first one to do it. REPRESENTATIVE LLOTD: Thank you very much. MR. FITZPATRICK: Thank you. CHAIRMAN SEMMEL: Representative Colaizzo. REPRESENTATIVE COLAIZZO: I'm Still concerned about the health and welfare of the people surrounding these towers, cellular. Has the industry itself made any studies or doing anything to offset any of those fears that might come up when you go for a site? MR. FITZPATRICK: You are talking about emissions? REPRESENTATIVE COLAIZZO: Yes. MR. FITZPATRICK: I can tell you, Representative Colaizzo, the industry has. I'm not a radiofrequency engineer or electronic engineer. I've read a lot of the surveys. I would refer the committee and subcommittee to FCC's fact sheets. I think at this point there's three fact sheets where there are a series of very pointed questions and answers on the safety and emission criteria. The FCC has undertaken to regulate that aspect of safety, and Congress in the '96 Telecom Act regulated it by what the local land use by saying that — pardon me — that no state or local government or instrumentality may regulate placement, construction or modification of wireless facilities on the basis of environmental effects of radio- frequency emissions, to the extent that such facilities comply with the commission's regulations concerning such emissions. That's Section 7B, Roman Numeral 4 of the federal act. So, there's specific reference to a carrier's mandatory compliance with federal emission levels. I read the fact sheets. I know they're readily available. I think the answer to that — REPRESENTATIVE COLAIZZO: Has anyone passed any opinion on those limits or on the fact sheet information on the medical field? I know they came up with that. MR. FITZPATRICK: I know other witnesses have shown you news articles. I've read the same news articles. I've seen the medical journals. I have had professors from Lehigh University testify that their own studies have indicated there's absolutely no public safety or medical harm. REPRESENTATIVE BUXTON: Can we get that? MR. FITZPATRICK: What's that? REPRESENTATIVE BUXTON: That Study from Lehigh. MR. FITZPATRICK: I said I've had witnesses from Lehigh testify to that based on the studies. I could get you the testimony that there's no harm. REPRESENTATIVE BUXTON: I'll get it later. I'm sorry, Tony. Go ahead. REPRESENTATIVE COLAIZZO: That's all right. I'm done. REPRESENTATIVE BUXTON: That's one of the major dilemmas we have here. We get these local citizens group who are very concerned and upset about something happening in their backyard that they are unfamiliar with. What they do is, they go out on the Internet and search for all this information. There's so much information out there on both sides of this issue of health which, according to the FCC, we aren't to be discussing, that it's created a real dilemma for some of us. You have a Ph.D from one university that did a study and another university. What I'm hearing in my backyard is, obviously, they're looking at certain studies and saying there is time for concern here. Then we pull up other studies that indicate that there is no concern with this technology. That's really the dilemma I think we are in at the local level here when these citizens appear before boards of supervisors. I'm not all that sure whether they're fighting constantly not in my backyard more than what they are, what are the health problems to my kids? MR. FITZPATRICK: You're right first off. There's the fundamental question for state government as to whether we should be in this because the FCC and Congress appropriates that issue to themselves. There's a lot of stuff floating around on the Internet. You can turn on TV and for 3.99 a minute call the astrological or psychic hot line and find out how the rest of your life is going to go. Some of the studies and things floating around the Internet and otherwise don't have credibility, but they are still accessible to people. One of the important things that carriers have to do when they go to local government here is to be very respectful of people's concerns. It doesn't make people content or satisfied to hear that the FCC is regulating this; that they are watching all their licensees, and that the licensees present detailed test studies to indicate that their emission levels are safe. As I said, I'm not an RF or an electrical engineering person, even acknowledgeable by any extent. I do know, though, there are materials that I use provided by the FCC that show wattage levels of cell sites compared to other broadcast facilities that show the average cell site broadcast ranges anywhere from 5 to 10 times less than some of the radios that our police officers carry strapped to their chest. People actually respond very well to those kind of studies when they see the level of emissions, albeit blessed by a federal agency, but see the level of emissions associated with wireless communication as opposed to commercial radio or TV communication. There's no comparison. They're so far different. REPRESENTATIVE LLOYD: On that point, I didn't follow the very beginning of your answer, but it strikes me that a useful way to deal with this is if you can could up with some comparison of what is the emission from a tower in comparison to — the Connecticut list had a microwave. I don't even know if we're talking about the same technology that was on here, or my colored television set. What's the risk if I sit 8, 10 feet from my color television set, which I do all the time, in comparison to one of these towers? Is that riskier or not riskier? MR. FITZPATRICK: There's readily available data out there. REPRESENTATIVE LLOYD: If I were in your position trying to calm down people, I would want to show them, yes, this may have some problems, but here's what the problem might be in comparison to all these other things which you accept as ordinary risk. MR. FITZPATRICK: Had I known this line of questioning would have even emerged — I came to talk about siting and zoning today. As a standard part of our package when we go out with Cellular One, we have charts, FCC generated charts that show with graphs the power levels of everything from TV broadcast down to cellular, which is at the bottom end of the spectrum just below police ban radios. REPRESENTATIVE LLOYD: Power, I'm not sure that's the right thing to compare. Is the power level the — REPRESENTATIVE BUXTON: There's powerful generators attached to these. REPRESENTATIVE LL07D: Is that the right thing to look at in terms of safety? Is that the emissions — MR. FITZPATRICK: You really need an RF frequency specialist with an electrical engineering background to talk about this. But yes, all that data is out there. REPRESENTATIVE LLOYD: It would certainly influence me in terms of whether the state needed to be more aggressive in this area if I looked at a whole range of things and cellular towers were toward the more dangerous end. Conversely, if I looked at that list and it were below things that I would never dream about voting for a law to regulate, that would persuade me the other way. MR. FITZPATRICK: If one of the staffers for this committee were to contact me, I will be glad to send out the FCC generated charts for your use. REPRESENTATIVE LLOYD: Thank you. MR. KLINE: We've already arranged for that. I don't want to interrupt. We hoped to have a witness here—unfortunately, we couldn't comply this time with what June's requirements were—who was an expert in that field. She has agreed to accept the written testimony on behalf of all the committee members, which I'm sure you'll get. We'll bring him in live if you want him eventually. I know that's a concern. You have two basic concerns/ how to deal with the zoning thing, which we felt Joe was an expert on, and this other issue which is very important. I just wanted to let you know we're working on that. MR. FITZGERALD: Just with respect to the combined question posed by Representative Buxton and Representative Lloyd on the safety issue, you talked about the powerful generators. But the fact is for the wireless sites, and I have been through this dozens of times in municipal and zoning hearings, the wireless cell sites run on 200 amp residential service, and they are not powerful generators associated with them. They don't require sewer and water. What you do require by way of utilities?— I can do these questions in my sleep—200 amp residential service.

CHAIRMAN SEMMEL: Thank you. MR. FITZPATRICK: Thank you. CHAIRMAN SEMMEL: At this time Mr. Blaine Lucas, Mollica and Murray. MR. LUCAS: Good afternoon, Mr. Chairman. I'll try to move this along quickly. I know it's getting fairly late in the day. I'm a partner with the Pittsburgh law firm of Mollica and Murray. Over the past 15 years I've spent the bulk of my legal practice dealing with all aspects of municipal law on behalf of both public and private clients, with particular emphasis on zoning, subdivision and land use issues. Presently, I'm the solicitor for several boroughs and townships, municipal authorities and zoning hearing boards. I'm currently the President of the Pennsylvania State Association of Borough Solicitors and recently finished my term as the Chair of the Solicitors Section of the Allegheny County Bar Association. I'm also an adjunct professor at the University of Pittsburgh's Graduate School of Public and International Affairs where I teach a course on land use law. Over the past several years I have represented several municipalities on litigation or on advisory matters related to the construction or siting of communications facilities. I've also represented several individuals or citizens groups opposed to what they view to be the improper approval and construction of communications facilities in inappropriate area of their communities. Several of these cases are still pending in courts. While narrow factual and legal issues for any one of these matter vary greatly— there's all kinds of issues that come up—I'm concerned not only as a lawyer, but also as a citizen and taxpayer, that local government entities to this point in time have been ill-prepared to deal with some of the legal and financial issues surrounding this new technology. In this regard, I want to stress the thoughts I'm relaying to you today are mine only and do not reflect the positions of organizations that I mentioned or any of my particular municipal clients. While much of the debate concerning these facilities has revolved around the conflict between local government and the industry, with the issue being the degree to which the industry should be regulated or not regulated by those local government entities, I'd like to focus today on somewhat a different scenario where a municipality and communications entity have, in essence, joined together in joint ventures for the construction of some of these tower facilities on public property. It is that situation where I believe to this point the public interest has not necessarily been served by what's happened in some of these communities. With all due deference to Attorney Fitzpatrick, I think you do have to look at some of the horror stories that have come about. In that regard in the written remarks I have given to you, I relayed a scenario that as a lawyer representing some of these people involved in this process that I have seen happen over and over and over again in Western Pennsylvania. I'm going to step back for a moment, as a municipal official here's what happens. It's happened numerous times based on the cases I've been just involved in. Tou're an elected municipal official. You receive a call from the manager, hey, we've got great news. Remember, we have this old water tower up on the hillside in the park. We got a call from some kind of cellular communications company. They want to locate an antenna on there. Or better yet, they want to tear the old tower down, it's not used and build a new tower. Tear down the old water tower usually. And, they'll pay us rent. To make it even better, guess what? They've already talked to our police chief and our fire chief and our 911 and EMS people, and they'll give us some free antennas to go along with this. There's this rush to enter into this agreement before you can even have the next public meeting. A lease agreement is usually drawn up, usually providing for a 25-year term with a bunch of options. It's quietly adopted without anybody from the public even realizing what's happening. Permits are granted. Even in the communities that I have zoning, permits are granted for construction of the tower. The tower is up within a matter of a couple months. Then all the fun begins. The minute the citizenry realized what's happened they start calling local government officials saying, what in the world is going on here? Immediately they are getting defensive. What they didn't realize when they approved all this was that, unlike that 75-foot water tower that kind of innocuously blended into the background, all of a sudden there's a three or 400 or even higher telecommunications tower that's been constructed that's painfully visible and obvious from every square foot of the community. It also happens ofttimes to be near that new residential subdivision that's just been approved where people are putting in these quarter or half a million dollar houses, and they are not very happy about that. The other thing that comes to light is, this isn't really just an antenna. It's a big tower; it's a 2-story communications equipment building. It's usually carved out of anywhere from a quarter to a half acre of land. There's an access road. It's fenced in. It looks kind of like a military site. It's a far cry from that innocuous first call that the public officials got. What they also is typically forgotten in this scenario, and this may be different from the siting issues that come up when you have an individual communications provider like AT&T and Cellular One come in and say, I just want to site one antenna. A lot of these towers that are going up are built by private companies that then lease out space to communications providers. While they may be one or two public sites offered up as the quid pro quo for the constructure of this tower, there are a hundred or more private antenna slots available on that tower that can lease for upwards of four figures per antenna slot per month. It is a major cash cow for the builders of those towers. The purpose of my presentation isn't criticizing. That's the America way. My concern is that, the public entities out there, because they don't understand a lot of the issues involved, have been ill-equipped to deal with some of the fallout from this.

In that regard, I have prepared a paper which is attached to my written comments which was an article published in the Pennsylvania Magazine several months ago in which identified a myriad of legal issues that come up in these tower siting cases. I'm not going to focus on all of those today. Some of those, quite frankly, I think are private property issues that are probably beyond the scope of what this committee is looking at. I have identified what I believe are three very important legal issues, some of which have been touched on today and some of which have not, relating to tower sitings. The first is, and this comes up in the context of the fact that what people don't realize is, these leases are 25-year leases typically, with options that typically allow that tower operator to have that facility on that public property for upwards of a hundred years, well beyond the time any of us in this room are going to be on this good earth. The first question that I have for this committee to consider is whether the lease, long-term lease of public property does or should require public bidding. The second issue is application of the municipal zoning ordinance and that issue has been touched on to some extent today. The third issue is application of the municipality subdivision and land development ordinance. That issue, while there have been some developments at the Commonwealth court level that have not been touched on today, at least during the part of the presentation I was here, I would like to address. Let me start with the public bidding issue. Most of the municipal codes, first- class township codes, second-class township codes, for example, require the sale of public real estate be preceded by public bidding if the amount involved is more than some nominal amount, usually $1,500 or something in that range; or, in the case of county code provisions and the school code may very well require court approval before you can convey away a public asset. These all refer to sale. In the context of communications tower transaction, the public bid laws typically apply if the municipality is actually selling the real estate to the tower builder. They're actually going to deed away part of the public park or the unused water tower facility, there doesn't appear to be much question that that would require public bidding. However, how do you treat a long-term lease? When I mean long term, we're again talking upwards of a hundred years. Does that qualify as the sale for purposes of these bid statutes? Does the donation of thousands of dollars of equipment and services in exchange for the lease space implicate the bid statutes covering the purchases of materials and supplies. Unfortunately, most of the municipal codes again only speak in terms of sale of municipal property. That's the word that's used in the statutes. While there's ample legal support and other context to support the position that a hundred year lease is a de facto sale and should be treated as such for purposes of public bid laws, the Commonwealth Court recently in Gaab versus Borough of Sewickley ruled that no, at least in the context of the borough code, sale doesn't apply for a potential hundred year lease transaction similar to what I have described here. There is a petition for allowance of appeal pending on this matter before the Supreme Court. The Supreme Court hasn't acted on that petition one way or another yet. As a result of what the ruling in the Sewickley case would suggest at the moment, for example, we have a situation in Allegheny County, not Sewickley, where one community entered into a long-term lease of park property for the construction of a tower, pursuant to which it will receive well in excess of $1.3 million for the first 25 years of the lease term. Another community, very similar suburban area in a very similar transaction will receive for roughly that same time period $62,000—over 25-fold difference between what these 2 communities got. My concern as a taxpayer, if I'm living in one of those communities, did my community do the municipal finances and till well (phonetic) by what they did or what they failed to do? The significant thing in both these cases is, they weren't publicly bid, nor was there even an attempt made by either community to retain an appraiser or other private consultant, third-party consultant to determine whether a fair value was being conveyed to the municipality in exchange for the right to locate the tower on the site. So, we don't know. The numbers would tend to suggest that maybe community number 2 didn't get a very good deal here, but because there was no process adhered to by either communities, you just don't know. I'd ask the committee and the General Assembly to take a close look at the public bid laws, not only as it relates to long-term lease transaction for communications facilities, but just for public property and other public properties assets in general. As it stands now, an outright sale requires public bidding, court approval or supporting appraisal, or some combination of the three. Unfortunately, the Sewickley case, it appears that any kind of long-term lease transaction, even if it involves hundreds of thousands or even millions of dollars, doesn't require any kind of public bidding or protection to the taxpayers to assure the municipality has gotten their fair monies worth. Therefore, I believe the legislature should seriously consider mending all the municipal codes to require either public bidding, or at a minimum, requiring some form of supporting appraisals before these kind of long-term transactions are entered into by local government entities. The second issue I'd like to deal with has been touched on, and I think maybe there's not a lot of disagreement on this, yields with how we handle the zoning issues. That's the one area where, obviously, technology has gotten ahead of the law. Ordinances adopted as little as 10 years ago had no conception of cellular PCS and communications towers, separate uses, let alone to specifically authorize them anymore. As a result, communications providers and tower builders are left with no choice but to attempt to squeeze their proposed uses into other use definitions found in the zoning ordinance. That can lead to two related but opposite problems. First, the attempt to shoehorn communications uses in a particular definition may be the last thing ordinance drafters had in mind when they drafted those ordinances and went through an elaborate planning process years ago. Yet, those concerned with tower sitings may find themselves in an uphill battle when they're faced with the contention that 300-foot high communications tower falls within the definition of zoning ordinance terms such as public utility, public service corporation. Essential services is another one that's has been subject to some legislation. The MPC and state appellate court cases require that when a zoning term is vague or uncertain, that term has to be construed in favor of the most liberal use of land and in favor of the property owner. Therefore, you have a situation where there hasn't been a conscientious effort made to address the communications facilities and appropriately site them, that the industry, quite understandably, is trying to squeeze their use into whatever definition they can find. That may be end up being in the totally most inappropriate place in the community for the location of those kind of facilities for a municipal planning perspective. Now, while some of the recent cases have been more favorable in a generic sense to municipalities in terms of their construction of these terms, I think what's important to look at when you look at four or five cases that have come down in the last couple years, they don't talk about whether communications facilities are good or bad or what health effects are. Basically what they deal with is, is the use being proposed permitted in a particular zone based on the definitions involved? What underscores I think is the need for communities to go back and really comprehensively update their ordinances and conscientiously decide where they want to site these kind of facilities. The second related legal problem that occurs because of outdated zoning ordinances has also been at least alluded to today, and that's the concept of exclusionary zoning. If I'm sitting in my opponent shoes trying to figure, okay, where can I help my client site one of these facilities in township X, and I can't find a definition within which I can argue that it falls, I'm going to turn right around and I'm going to say, you don't permit it anywhere. Therefore, your ordinance is exclusionary and under recognized case law in Pennsylvania, I'm probably going to have carte blanche to go in and locate this thing wherever I want. Neither of those situations is a desirable alternative, quite frankly, either the industry or the municipalities involved. In order to avoid these pitfalls, municipalities have to approach communications towers issues like they would any other land use issue. They have to plan in advance. They have to select the zone or zones within their communities that those uses are appropriate or at least most tolerable, specifically define and authorize those uses within those zones and decide on what reasonable limitations as to height, setbacks and similar requirements should be imposed. By doing that, the municipality is doing a favor for its residents, the industry and itself by avoiding the cost of piecemeal litigation of some of these cases. What, if anything, should the General Assembly do as it relates to this issue? The zoning power has always been something that's been jealously guarded as local governments. That seemed to be the theme that was reiterated at several points today. I'm not in anyway suggesting—basically because I don't think my clients would like it very much—that that balance between state and local government should be altered in a way that the state assumes a more aggressive role in communications facility regulation. However, given the difficulty and the lack of expertise that Representative Lloyd, quite understandably referenced, that local government officials have in this area, I think it would be desirable if the Commonwealth, perhaps through the Department of Community and Economic Development or other appropriate agency, should seriously consider developing model voluntary guidelines for local government agencies to consider adopting. In that scenario you could have input from both professional planners as well as representatives of the industry. I believe that could result in some reasonable degree of standardization of zoning regulations throughout the Commonwealth as it relates to these facilities. This would allow the industry to grow with a higher predictability, while at the same time, avoid a situation where communications facilities are inappropriately sited in areas where they shouldn't be. The third issue I'd like to briefly touch on is land use issue, and that's the issue of subdivision and land development control which is the companion to zoning regulation that exist under the MPC. In fact, in a lot of rural areas that don't have zoning they have adopted subdivision and land development ordinances. A typical communications facility that has been the spark of litigation and a lot of controversy in the western part of the state entail a large tower, one or 2-story equipment building, usually serviced by electricity and maybe some other utilities, usually surrounded by a 6 to 8-foot high fence, and accessed by a gravel or paved road some distance from a public road. Usually more often than not that parcel is being carved out of a larger piece of public land; corner of a park, for example. That type of development I believe implicates subdivision and land development regulation in two ways. In most communities, subdivision and land development regulations are overseen by recommendation by the planning commission and ultimately approval by the governing body. The MPC which controls over contrary definitions that might exist in a local government ordinance defines subdivision to include, and this is just an extract, the division or redivision of lot, tract or parcel of land for any means, including changes of existing lot lines for the purpose, whether immediate or future, of lease. So, the language of the MPC would tend to suggest that the scenario I've described where this complex is carved out of a public park facility at leased out long term is, in fact, a subdivision and should be reviewed and considered as such by the local government entity. Additionally, the MPC goes on to define land development to include any improvement involving a single nonresidential building on a lot or lots. This kind of complex will also appear to fall within that definition. In these couple of communities that I've been involved in litigation where the communities kind of entered into a joint venture with the tower builder in exchange for rents and some communications facilities, everyone seems to forget about these regulations. Conveniently the zoning ordinance case is ignored, number one. And typically, the subdivision and land development approval process goes out the window too. We have the ironic situation that, contrary to what I know happens in a lot of cases where the industry is faced with very hostile opposition that maybe not warranted by the very language of the ordinances in question, in these kind of situations the tower operator ofttimes walks away scot-free from any zoning or subdivision and land development regulation. That, in Allegheny County in several cases, has resulted in extremely controversial tower sitings with two or three or four lawsuits being filed and most of them at this point still pending. Regrettably, with respect to this definition of land development, there's a recent Commonwealth Court case that the committee may be aware of called Tu-Way Towers where the Commonwealth Court found that a tower complex similar to what I just described was not a land development. The issue of subdivision did not come up because they owned the whole parcel and it wasn't a public parcel. The Commonwealth Court concluded that the tower was the main structure; that wasn't a building, but that was the main use. Therefore, the building was the only thing that might qualify as a land development, but since the building was only accessory to the main tower use, that somehow didn't qualify as a land development. Quite frankly, you can scour the definitions of the MPC which seems pretty clear, and I'm hard-pressed to see how the Commonwealth Court reached the decision they did. Although, ironically, in that case the tower builder was arguing that he was a subdivision and land development because of some of the weird procedural rules of protection from changes in the zoning ordinance if you had been approved as a subdivision and land development. Ironically, in that case the Commonwealth Court ruled against the industry in that particular instance. The long-term impact of this case is very clear. It eliminates a regulation that any other type of use similarly situated would have to go through that subdivision and land development process. I think this is another area where this panel and the legislature may want to take a close look at what the court ruled in that case to determine whether that, in fact, fits with the state's policy with respect to how you want to treat the zoning and subdivision of these kind of uses. With that I would be more than happy to answer any other questions the panel may have. CHAIRMAN SEMMEL: Thank you. Representative Buxton. REPRESENTATIVE BUXTON: Mr. LUCUS, do you believe that certain things need to be changed by the legislature to address issues in the telecommunications industry? MR. LUCAS: I believe on the question of zoning issues, the legislature can assist local government in providing more technical and legal and planning support so they can choose what regulations they would like to adopt.

As I indicated, I firmly believe that as it relates to public bid issues, that the legislature should take a close look at what's happened in some of these cases, because it would appear the interest of the taxpayers of some of these communities have not been served by the behind-the-scenes negotiation of some of these lease arrangements which may be grossly below fair market value.

I also believe that in the context of subdivision and land development, this legislature may want to seriously consider whether it wants to clarify the definition of those terms and how they relate to communications complexes such as I have described here today. REPRESENTATIVE BUXTON: Well, as an active member of a state organization, don't you believe there's a certain role that they can play to assist our local governments on some of these issues without legislative action or initiative? MR. LUCAS: To some extent, yes. REPRESENTATIVE BUXTON: I.e., get an ordinance enacted in many instances. MR. LUCAS: That's what I preach, believe me. I speak before a lot of local government groups. The message basically is, get your act together, plan and adopt an ordinance. I do believe that the local government associations like the Borough Association and the Township Association can provide some assistance, but I think there may be a need for a little bit more, at least advisory uniformity than just having those separate associations advised of different members. That's where, perhaps, the Commonwealth, with a little bit more resources particularly as it relates to some of the technical issues, is probably in a better position to work with some of the representatives of the industry to see if common ground can be derived on some of these things. CHAIRMAN SEMMEL: I want to follow-up with your idea of bidding. What would your suggestion be, two contiguous townships and this tower happens to be in this corner of the township and maybe serving half of that township, but the other half of the population being served in a neighboring township. A bid is rendered, but yet, that other township would not be receiving any of the monies. What might be your thoughts in that case?

MR. LUCAS: I guess it depends which of the two townships I was representing. That's a tough question. I understand your concern. You have a public asset that I believe as a taxpayer you should make sure you are getting top dollar for. That asset is also potentially having an adverse impact equally on another community. In fact, in the Sewickley situation, the Borough of Sewickley is located down along the Allegheny River and is basically a one-mile square area. Sixty or 70 years ago it annexed about 80, 90 acres of a dogleg that's basically unwooded now, and there's one or two water facilities on it that juts up into the heart of the Borough of Sewickley Heights. Sewickley didn't seem to have much of a problem, at least initially, with approving this tower way at the top at this dogleg because there's no one in the Borough of Sewickley who lives within a mile of this tower. The only people who live close to it live in the Borough of Sewickley Heights. I think that's the issue you're referring to.

REPRESENTATIVE LLOYD: The issue which Representative Semmel raised puts somewhat of a different twist on the point that I was making about counties. But, it leads back to maybe having the county exercise some authority here is a good way to balance these competing interests, because the example which you gave, clearly the government which has the authority over it is not the government at which — They can tell all those people out there screaming, hey, you don't vote for us. We don't pay attention to you. We got a good deal for our constituents. They're getting money. You're the snooty people up there on the hill. That's not your problem. From the standpoint of good public policy, that's not a satisfactory answer, but I can certainly easily imagine that answer being given.

Tou agree with Mr. Fitzpatrick that under the Municipal Planning Code the county could have some type of ordinance that would establish a procedure for dealing with that type of problem? MR. LUCAS: The caveat I have here is that, almost all my experience has been in more populated areas. I haven't had much experience in those areas that don't have zoning at all. I don't know the answer to your question. I will be more than happy to take a look at that and get back to the committee. REPRESENTATIVE LLOYD: I listened to, and I think Representative Buxton did also, to a tape of a presentation at the National Conference of State Legislators which was done on this subject. The first presenter was a woman from Montgomery County, Maryland. I don't recall if she was a member of the county council or she was the county executive. What that highlighted is, once again, there are some advantages in those states which have strong county government. You can coordinate these types of things. There's access to expertise that's not available to most second-class townships, certainly, in Pennsylvania. It strikes me, if we're looking for ways to try to make sure everybody understand what the rules are and that you deal kind of in a rational way with them, moving that up the chain to the county might be a sensible thing to do.

MR. LUCAS: I would agree. I think in the abstract, and probably in practice in some of the more rural counties, that may very well be a viable way to go. The difficulty you have is, the abstract starts in a place like Allegheny County with 135 municipalities who probably don't want to give up that authority. It creates problems in its own right. REPRESENTATIVE LLOYD: That's what I think makes Connecticut so different from Pennsylvania. Not only is Connecticut a much smaller state, but it doesn't have the diversity that a state like Pennsylvania does. That's why we have different codes for different size and types of municipalities, because those of us in rural areas, there's a different philosophy, but also a different set of problems. What's acceptable in my area is totally unacceptable in Fox Chapel or Mount Lebanon. I understand that and I think the law needs to understand that. The possibility of having some kind of guidelines developed, and what June and I were discussing—kind of great minds run in the same channel—is the local government commission. That maybe there would be a way that the Local Government Commission in cooperation with the industry could spearhead some effort to draft some model guidelines or model ordinances, and could also try to identify a way to have the expertise that I was referring to ad infinitum ad nauseam this afternoon, the expertise made available to the local officials. That's an agency with which the local government would feel very comfortable. It's also an agency of the legislature, so it's not quite the same as going to DCED. This is something we tell them to do it, they'll do it. It just strikes me that might be a good way to resolve this. I guess my final question would be, the notion of a long-term lease and having to bid makes a lot of sense to me. One of the first pieces of legislation I ever had enacted into law when I got to Harrisburg had to do with making it harder for counties to buy property without getting appraisals, and so forth, because of an incident that happened in my county. I'm curious, however, as to whether or not your clients would support that legislation. MR. LUCAS: I don't know. That's why I started this with a disclaimer. REPRESENTATIVE LLOYD: It strikes me that the taxpayers are for it. I think it's a good idea. Tour clients are against it, the industry is against it, and it's probably not going to pass. Thank you very much. MR. LUCAS: Thank you. CHAIRMAN SEMMEL: Thank you very much. That concludes our hearing today. (At or about 5:30 p.m. the hearing concluded)

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CERTIFICAEE

I, Karen J. Meister, Reporter, Notary Public, duly commissioned and qualified in and for the County of York, Commonwealth of Pennsylvania, hereby certify that the foregoing is a true and accurate transcript of my stenotype notes taken by me and subsequently reduced to computer printout under my supervision, and that this copy is a correct record of the same. This certification does not apply to any reproduction of the same by any means unless under my direct control and/or supervision. Dated this 15th day of September, 1997 .

Karen J. Meister - Reporter Notary Public My commission expires 10/19/00