Baton Rouge 5G Cell Tower Initiative Facts
Why Are We Here?
- AT&T authored the 5G Cell Phone Tower Ordinance and brought it to Metro Council Members
- Misunderstanding of the FCC Declaratory Ruling and Third Report and Order – Current rollout NOT the intent of Congress or Metro Council
- Metro Council did not provide any oversight provisions in ordinance
- AT&T blitz to put up as many towers as possible before public outcry
- NO rhyme or reason to the placement of towers – front yards, medians, schoolyards
- NO consideration for homeowner property value
- NO consideration for subdivision property value
- NO conclusive evidence of non-harmful effects of 5G RF – contradicting reports. There ARE enough studies on the negative effects of 5G technology on humans to warrant more conclusive research
- This is just the first wave of AT&T towers – many more planned
- Other cellular carriers will want to have their network towers – there will be hundreds of towers throughout the parish located in every neighborhood – no consideration for co-habiting tower locations
FCC Declaratory Ruling Facts / State of Louisiana
No matter what has been said in the past, the FCC has provided a path for the council to exercise their authority to manage EBRP’s rights of ways. See page 44 of the FCC Declaratory Ruling and Third Report and Order. On page 44 of the Declaratory Ruling and Third Report and Order:
- 82. “Section 253(b) saves state “requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers. And Section 253(c) preserves state and local authority to manage the public rights-of-way.”
- 16. By reviewing the current ordinance you are not inhibiting or limiting the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment.
- 17. Proposed amendments shall not (I) unreasonably discriminate among providers of functionally equivalent services and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services. Section 332(c)(7) generally preserves state and local authority over the “placement, construction, and modification of personal wireless service facilities” but with the important limitations described above.
- 86. Recognizes differing perspectives and the significant impact of aesthetic requirements. The FCC concludes that aesthetics requirements are not preempted if they are (1) reasonable, (2) no more burdensome that those applied to other types of infrastructure deployments, and (3) objective and published in advance.
A link to the FCC Third Report and Order is provided here. We have also cited sections in the Order allowing governance if not discriminatory. Our legal counsel agrees that you have tremendous authority to govern how the rights of way are used in the rollout of 5G towers in EBRP. While the Third Order is complicated, we believe that the whole Third Order needs to be reviewed so you know what authority you have.
there is also concern over the possible effects on our citizen’s health and safety. While the FCC has stated that the health concerns are not great enough to stop the creation of a 5g network, there are differences in opinion from other branches of the US government and many in the medical and scientific community. HR 145 was passed in the 2019 legislative session. Download the document here. Our legislative body recognized the need for further study and tasked two state departments to report back to it next year.
- To urge and request the Department of Environmental Quality in conjunction with the Louisiana Department of Health to study the environmental and health effects of evolving fifth generation cellular network technology (5G) and report its findings to the House Committee on Natural Resources and Environment and the House Committee on Health and Welfare no later than sixty days prior to the convening of the 2020 Regular Session of the Legislature.
Short Time Frame - Next Steps
- A moratorium on any new towers until notification process developed – Mayor granted.
- Metro Council will discuss 5G issue and ordinance on June 26 - Council agreed to amend
- Metro Council will schedule a vote in the near future on the amended ordinance.
- Amended Ordinance creating guidelines as to the placement of all 5G towers
- The 5G Cell Tower Task Force and several member subdivisions have been working with the Daigle Fisse & Kessenich Law Firm. They have prepared letters for HOAs and homeowners to send to the Metro Council that brought to the point we are at now.
- Daigle Fisse & Kessenich, PLC, with offices in both Baton Rouge and the Northshore, has been assisting the Task Force with understanding of the legal issues.
- Partners, James L. Bradford, III, D. Stephen Brouillette and Sheri Morris, have been providing legal counsel to date free of charge to help shape the response to AT&T actions and particularly the small cell tower ordinance. We are raising funds so they can complete the work on the ordinance.
- Daigle Fisse has proposed a budget to do two things:
- (1) provide a legal memorandum surveying the law applicable to locating and permitting small cell towers, with particular focus on what the City-Parish can control within its own right of way, as well as brief survey of the local laws adopted by other communities to address this issue; and
- (2) a draft of an amendment to the existing small cell tower ordinance with a primary focus of providing
- (1) real and adequate notice to property owners within the vicinity of the proposed towers, with a procedure for those landowners to be heard by the City-Parish, IN ADVANCE of any issuance of a tower permit; and
- (2) a set of criteria or issues that the City-Parish must take into consideration prior to issuance of any tower permit (among the criteria that might be included could be
- (a) the aesthetic effect of the tower on the neighborhood or target location;
- (b) effects of tower location on adjacent property values;
- (c) alternative location opportunities in the same target area;
- (d) opportunities for co-location on already existing structures;
- (e) potential requirements for mandatory co-location in areas where the avoidance of tower proliferation is imperative, and undoubtedly other considerations as well).
The task force has been working with members of the Metro Council and the Mayor’s office. We feel we have a very strong plan of action that will produce the results outlined. With your HOAs financial support, we can get the current ordinance amended.
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