Where my advice applies depends on the motive for delaying the a Tower application.
I agree one must fiirst identify what the local laws/ordinances are, and make sure that they comply with them, prior to building. Building in a way that is known to be against allowable rules, is a really bad idea. The reason I brought it up was... of three type cases.... 1) Some county officials have alternative motives. They don't care about the legality of it, and instead look to leverage you to make revenue for the town. In these cases the county will loose in court. 2) Some couty officials purposely use delay tactics, hoping the person wanting to build the tower will just go away. 3) Some county officials are clueless on the laws, and are fighting something that they do not have the right to fight for. I'd always recommend that the define proceedures for tower application, be explored first, and allow fair time periods to negotiate an agreeance. My point was not to be a renegade, but just that one doesn't have to let themselves be bullied by the county. I can give one example, where I requested about a town water tower colocation, and the fees were to high, that the township were asking of $3000/month for the small little town. So I wanted to build a tower. They then wanted to deny me the permit, to try and force me to pay the town a reoccurring fee. I could have fought them, and won. The path I chose, was not to fight it. I ended up just colocating down the street on a tower, after I managed to talk the private tower owner way down in price. They feared I would build a tower to compete against them, and they were much better off just charging me a lower rent to for my little operation. I also misread the original post. I thought the tower was already built without permits, and the county/permitting office was giving objections after the fact. Tom DeReggi RapidDSL & Wireless, Inc IntAirNet- Fixed Wireless Broadband ----- Original Message ----- From: "Joe Fiero" <[EMAIL PROTECTED]> To: "'WISPA General List'" <[email protected]> Sent: Tuesday, August 12, 2008 1:18 PM Subject: Re: [WISPA] Tower site liscensing problem > Tom, > > Your suggestions are valid for an OTARD situation, but ill advised in this > case. The burden of proof is not on the municipality, however compliance > is > expected. Failure to comply and operating a facility could likely result > in > fines being assessed daily. > > The first question is how are they defining a 'telecommunications > facility'. > Also, what exceptions are specifically allowed for under the ordinance. > Certainly some early discussions and education can bear fruit, but if all > else fails, they hold the cards, not the operator of the site. > > The FCC has stated they can not restrict towers being built, but they have > capitulated on many aspects including local control as to placement, and > visual impact. The municipality can require the facility to be > constructed > on pre-approved sites, often township property. Of course that's so the > revenues stream comes to them and not the guy that owns the collision shop > where they want to build the tower. > > The FCC no longer gets involved. They have pushed these cases into court > time and time again. As long as there is SOME provision to build > facilities, they are of the mind that the municipality is in compliance. > > > > > > -----Original Message----- > From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On > Behalf Of Tom DeReggi > Sent: Tuesday, August 12, 2008 2:04 PM > To: WISPA General List > Subject: Re: [WISPA] Tower site liscensing problem > > You may wanted to argue two points.... > > 1) That your company/broadcast site does not match the description of > "telecom facility" as defined in the County Code. And that there is no > provision listed in the county code that specifically states your business > type and use, and that bundling you into the closest thing is not > appropriate because the closest thing is far away from the profile of your > company and infrastructure, and therefore appropriate to assume that you > should be exempt from the County code requirements as written. > > 2) Second, argue that you are Grandfathered at that site from any future > legislation, as you were installed prior to any new legislation or > ammendments that may decide to make to attempt to charge you unfair > amounts. > > You must get the county code, and read it like a hawk, and be clear on > exactly what it states. Thinks like "telecom facility" you re specifically > exempt from if you are not a "telecom (LEC)". Brand X case should have > proved that an ISP is a "broadband" company. A wireless provider is > usually > portrayed as a "broadband company". The key to your defense is in the > "definitions" of terms used in the County code. > > Additional approached.... > > 1) Contact FCC for help. The Otard does not specifically protect the > right > to build towers, it falls under the jurisdiction of county code (unless a > smaller governing intitiy liek an incorporated city).. But there are > provisions at the federal level that prevent counties from putting overly > stringent demands and delays on broadband/tower owners. There was a really > well known and big case on this issue, that was won by the tower owner, > after several years of legal trials. (guessing around 3 years ago). The > FCC > > will help you, by putting pressure on the County to play fair. > > 2) Determine if you have public support for your services and tower, > versus > a tower that the public wants to seen torn down. If its likely you'd > have > public support, you can always go to the media. Stories like "County > plans > to shut down local entreprenure, stop economic development, and deprive > under served areas and consumers of broadband." Followed by ideas that you > might move your business to another county that supports economic > development. Etc Etc. Stating the County should be pitching contributing > matching funds, instead of burdening you with fees and taxes. Maybe send > the rough draft to your local legislators prior to sending it to the local > newspaper. > > Important note.... In most cases, they do NOT have the right to prevent > you > from operating and broadcasting while legal trials or appeals are being > faught and negotiated, provided you are not causing a significant safety > concern. The burden of proof is on them, to get a ruling of why you need > to > > take it down. They do have ways to make life hard for you, so if hard > ball > > occurs, you'll probably need an attorney. For example, even if they just > used the dispute to put a hold on your corporate status, that could > prevent > you from getting a loan until resolved. > > Another option is that if the site is important enough to you, and it > becomes a large enoug problem, you may want to seperate it from your other > core business. > You could set up a seperate company that owns that tower, so any > legislation > > regarding that tower does not effect your other business operations. > > Lastly, info is needed like whether you followed the proper proceedure and > permitting in building the tower in the first place. In most counties, you > do not specifically have the right by default. They just didn't update > their > > code to consider new business types like WISPs. > > 3) You can always go the HAM radio tower route. Federal law allows you to > build a HAM radio tower, for a license fee of about $95. The catch is that > you are NOT allowed to use it for commercial purposes. You could say > anything you are doing is free to the users you are connecting with (other > HAMs). That would then add an additonal burden to the county to have to > prove that you were actually serving paying customers from that site. > > An important factor here is... what makes the county more money? If you > give service away, and aren't making any money, you don't pay income tax > on > the revenue that you useed to make. > If they learn your tower isn't going anywhere do to the HAM license, and > that your business model truly does not afford to pay tower telecom level > permit fees, and they are only accomplsihing reducing your taxable income, > they very well may give up, and give up on it, without a justifyable > reason > to pursue it further. > > Good luck with it. > > Tom DeReggi > RapidDSL & Wireless, Inc > IntAirNet- Fixed Wireless Broadband > > > ----- Original Message ----- > From: "Isp Operator" <[EMAIL PROTECTED]> > To: <[email protected]> > Sent: Tuesday, August 12, 2008 5:37 AM > Subject: [WISPA] Tower site liscensing problem > > >> Hi Gang, >> >> We recently received notice that one of our locations has received the >> interest of our county planning department, who has determined that the >> location requires a 'use permit' for a major impact utility location >> (eg: Cellular telephone). Naturally, we strongly disagree with this >> determination. >> >> The site is in a remote location, on private property completely out of >> view of anybody(*), solar powered, on a 25' mast, with only the most >> basic of equipment installed including two access points with an omni >> and a sector. Aside from being 'outdoors', really, there's no >> resemblance to a 'cellphone tower' as the gear is equivalent to what >> most people use for their home wireless networks, albeit with slightly >> larger externally mounted antennas. The planning department DID NOT cite >> any building codes or height restrictions, just that we seem to be >> 'transmitting' as well as 'receiving', and we're certain that the >> determination has to do ONLY with the fact that it's a wireless repeater >> and otherwise wouldn't receive any attention at all if it was a wind >> generator, weather station or other application. >> >> The substantial weight of the use permit process they wish us to go thru >> is exactly that for a major cellphone site, complete with hefty >> application fees, public hearings, zoning approvals, and the whole nine >> yards. Assuming we made it all the way thru the process, we would then >> also be required to build it up with severe site upgrades including fire >> access and other features, which is simply too much overkill and we >> would not be able to comply. >> >> Isn't there some kind of exemption or otard-similar ruling or legal >> guidelines from the fcc regarding this type of situation? I can only >> imagine that the criteria cited would also apply to many, many other >> uses of part-15 devices and that the regulations just predate (2001 in >> our case) the real onslaught of linksys in every home. I also imagine >> that there would be substantial damage if every wisp was required to get >> cellphone tower permits for every single repeater in use according to >> these strict interpretations. We're going to need more than common sense >> here, we're going to need legal precedence or references to directly >> refute this determination, and we would appreciate your help. >> >> Thanks all. >> >> >> (* We were turned in by a certain tin hat, who has been dogging us for >> some time now and attempting to create sympathy for their extreme views >> which we are sure you all are aware of. Just one more reason to not >> share detailed system information with anybody....) >> >> >> >> > ---------------------------------------------------------------------------- > ---- >> WISPA Wants You! Join today! >> http://signup.wispa.org/ >> > ---------------------------------------------------------------------------- > ---- >> >> WISPA Wireless List: [email protected] >> >> Subscribe/Unsubscribe: >> http://lists.wispa.org/mailman/listinfo/wireless >> >> Archives: http://lists.wispa.org/pipermail/wireless/ > > > > ---------------------------------------------------------------------------- > ---- > WISPA Wants You! 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