With show of reluctance, Gig Harbor City Council approves 5G cellphone franchise
Despite doubts about safety, the Gig Harbor City Council reluctantly approved a franchise agreement for a 5G wireless cellphone system.
“I feel backed into a corner,” said Council Member Tracie Markley, who was the sole dissenter during the April 13 vote.
Under federal law, the Federal Communications Commission preempts local authority in decisions about wireless facilities. In addition, state law allows utilities to sue if they feel they’ve been unjustly refused a franchise.
Markley called federal preemption “extremely overreaching,” and another council member, Jim Franich, said “It feels like we have a gun to our head.”
The franchise agreement is with ExteNet Systems, Inc., a broker that installs systems for cellphone providers. It allows for the installation, operation, and maintenance of telecommunications equipment in city rights-of-way.
Small wireless equipment, such as boxes, cables, conduits, and antennas will be installed at the top of the light and city poles. ExteNet has said the installations will be designed to blend with the character of the neighborhood.
The franchise is for five years, and is renewable. The franchise does not name a specific cellphone provider, but ExteNet has worked with Sprint in other cities.
Next generation
5G is shorthand for “fifth-generation” wireless, which promises high speed and greater bandwidth for video and new uses like self-driving cars or “smart” appliances. But it is controversial because it uses higher frequencies than existing cellphones, and nodes are spaced both more closely together and closer to the ground.
There is scientific disagreement over whether those frequencies, called “millimeter waves” can be harmful to humans, and a cottage industry has sprung up on the internet spreading fears about the new technology.
In April of last year, according to the technology website C/NET, the Belgian government halted a 5G test in Brussels over concerns that radiation from the base stations could be harmful. In Mill Valley, California, the city council blocked the deployment of new 5G cells.
More recently, an unfounded rumor that 5G wireless was responsible for spreading the COVID-19 virus resulted in arson attacks on cellphone towers in Britain.
Federal law preempts local
In the United States, use of radio frequencies is governed by the FCC, which sets safety standards for emissions. The Communications Act of 1996 limits state and local authority to zoning and land use issues only. According to the act, local governments “may not regulate in a matter that prohibits, or has the effect of prohibiting, the provision of wireless services.”
The statute also preempts local decisions “premised directly or indirectly on the environmental effects of radio frequency emissions.”
When ExteNet Systems applies for a permit, they will provide a report that shows they comply with the FCC standards, city staff told the council. Compliance with FCC standards is the only criterion the city can use to judge whether the system meets health and safety requirements, the council was told.
Asked at the council meeting if FCC approval means the equipment is safe, Elana Zana, the city’s franchise attorney, said “Safe is an interesting word because many people will define it very differently.”
“You might define it differently than how the FCC defines it,” she said, “but we need to comply with what the FCC requirements are.”
That’s the point, said Markley.
“What I have a problem with is, I don’t think what the FCC thinks is safe is actually safe,” Markley said. “That’s just my personal opinion based on personal research I have done.”
In a later email exchange, Markley told The Gateway, “There simply isn’t enough evidence in either direction, safe or unsafe, to say with any certainty that there will or will not be hazards caused by these millimeter waves. That is my biggest problem with this entire issue.
“We have no idea what these installations will do to our citizens. We already know that 3G and 4G frequencies can be harmful to humans. 5G is on a whole new level and multiple times faster than existing technology, as well as operating at extremely high frequencies. So, why would we assume that they will be safe? That’s just it. We cannot assume they are safe.”
Lawsuits a possibility
If the city voted down the resolution, Zana told the council, a lawsuit would be a very real possibility for the city.
“Under state law, you need substantial evidence if you are going to deny the franchise,” Zana said.
Council Member Jim Franich said the only ones who are able to make decisions are “big business” and the FCC, who are driving the ship.
“It feels like we have a gun to our head, so to speak, for fear of legal action by not moving something like this forward,” Franich said. “I want to go on the record and say I think that is a crying shame we are being forced to do this with a lot of unanswered questions.”
In a later email, Franich added, “This is a example of technology (and therefore profits) outpacing the knowledge of the effects. I would assume Boeing is rethinking its decision to move forward with a technology that overrides the pilots ability to fly the plane. In some cases just because a technology exists it does not mean it should be implemented.”
Mayor Kit Kuhn told the council the five-year contract is the shortest amount of time possible for the franchise agreement, with many franchises being ten years.
Kuhn said that down the road, if unknown side effects are found due to the franchise, council are not obligated past five years, and the company would need to dismantle and take down the services.
“I’m proud we worked to get this to five years, I think that’s the shortest we can do,” Kuhn said. “I think this is being mandated by the federal government. I am not thrilled about it either, but I am proud of our attorneys who worked to try and make sure we don’t compromise our citizens in our community as best as possible. We will know a lot more in the next five years.”
This franchise agreement was passed with a 6-1 vote, with Markley voting ‘no.’
Kuhn said an application is expected to come in soon, which would begin the process of installing telecommunication equipment.
In other business, the city council:
Adopted an ordinance which reduces water and sewer rates for one billing period due to COVID-19. “I think this is wonderful, we are all in this together. It shows the city is willing to throw in as well and help everybody out,” Council Member Robyn Denson said.
Authorized the mayor to execute a contract with the city of Gig Harbor and Teamsters 117 – Police, which represents the police officers and sergeants. The purpose of this agreement is to set forth an entire understanding between both parties in regards to wages, hours of work, and conditions of employment. This contract will cover January 1, 2019 through December 31, 2022.
Authorized the mayor to execute a Professional Services Contract with David Evans and Associates Inc. for engineering services in an amount of $217,188. This contract provides for preliminary engineering services for improvements to the east side of Harborview Drive and Burnham Drive between Austin Street and Harborhill Drive. The project intends to improve safety along with improve vehicle traffic flow. This project is included in the 2020 budget. The budgeted amount for the project is $225,000 of local funds.
Adopted an ordinance which ratifies the action to suspend the enforcement of the prohibition on single-use plastic bags and non-recycling food service ware due to help slow the spread of COVID-19 retroactive to March 27. This was decided shortly after the mayor signed a Proclamation of Emergency on March 23.
Listened as Mayor Kit Kuhn praised a large amount of human service organizations in the city, including the Kiwanis Club, the Greater Gig Harbor Foundation, the Gig Harbor Peninsula FISH Food Bank, and many others who are working to enhance and assist the city during a time of COVID-19. “Our gratitude toward them continues to grow, so thank you so much,” Kuhn said.
This story was originally published April 16, 2020 at 2:00 PM.