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Pleasanton Planning Commission November 13, 2013 Page 3 of 4 • The Proposed Amendments retain the requirement to have a third-party engineer measure RF emissions every three years (§ 18.110.160.E.2). This exceeds what the FCC requires and is therefore preempted by federal law; it would be more than sufficient to require updated RF calculations (not measurements) any time a facility is modified. • The Proposed Amendments continue to require that facility owners upgrade their facilities every time they renew the permit for a facility(§ 18.110.260.B). This is inconsistent both with vested rights under state law, and with the federal preemption of all technical and operational aspects of wireless technology. See New York SMSA v. Ltd. v Town of Clarkstown, 612 F.3d 97 (2010) (Congress has imbued the Federal Communications Commission with plenary authority over the technical aspects of wireless communications facilities development, which preempted town's preference for alternate wireless technologies). • The Proposed Amendments would retain the restriction that a legal, non- conforming facility may not be modified unless the modifications bring it into "greater conformity"with the ordinance (§§ 18.110.250.A, 18.110.260.D). This is inconsistent with federal law, which as noted in the staff report requires that the City approve any modification that does not substantially change the physical dimensions of the facility. See 47 U.S.C. § 1455. • The Proposed Amendments continue the attempt to impose strict liability for certain events (§ 18.110.280.B-C), which is not within the City's land use authority. Tort liability is the province of the courts as well as state—and to some extent federal—legislation, but not local governments. • The Proposed Amendments would allow the City to retain one or more experts at the applicant's expense to review virtually any aspect of the application, with no limit on the fees charged and no specific qualifications for the experts. (E.g., §§ 18.110.040.A.2, 18.110.50.A.4). At a minimum, experts should be licensed engineers with demonstrated expertise in wireless network design, RF engineering, or another technical field relevant to the issue in question. To prevent overcharging what amounts to a captive "client,"they should be required to certify that the fees charged for work on behalf of the City are reasonable and do not exceed what they would charge for the same or similar work on behalf of a client who hired them voluntarily. Conclusion In short, the Proposed Amendments represent a positive, albeit modest, step in the night direction, but are far from a complete solution to the problems the staff report identifies with the current ordinance. We ask that the Commission continue this matter to