Tuesday, April 14, 2015

New Radio Tower Atop Kennesaw Mountain Stirs Controversy


By Joe Kirby
August 2005


KENNESAW, Ga. – A new communications tower atop Kennesaw Mountain is more obtrusive than expected and is drawing criticism.

The 112-foot tower was erected in early May and is topped by radio equipment used by a variety of local public safety agencies, local hospitals, the National Park Service and utilities.

But it looks little different than a typical cell-phone tower. And though park officials promised it would be less visible than the four antennas it replaced, it turned out to be more visible.

The new tower rises an estimated 20 feet or so higher than the surrounding foliage near the top of the mountain and, to make matters worse, is on the side of the crest that faces nearby Marietta and Atlanta. Though the old towers could be seen from the base of the mountain by those with a practiced eye, the new tower is clearly visible from downtown Marietta several miles away.

That prompted grousing by local friends of the park and at least one sarcastic letter to the editor of the Marietta Daily Journal.

"I would like to compliment Kennesaw Mountain National Battlefield Park officials for permitting the recent construction of the historically accurate cell phone tower atop Kennesaw Mountain," wrote reader Rick Schick of Marietta. "Now, as visitors stand on top of Kennesaw Mountain, not only the cannons but the cell tower can serve as a reminder of how the war was fought. Our children will be able to picture in their minds the Civil War soldiers making critical battlefield decisions and communicating with their loved ones back home on their cell phones. …
"Lest we ever forget, it is only through the liberal use of asphalt, concrete and steel that true historic preservation can be achieved."

 To read the full story, click here.

Sunday, April 5, 2015

Here a Fiber, There a Fiber, Everywhere a Fiber, Fiber

When DeKalb County School Board members approved 30 year lease agreements that have finally
Comcast Fiber steps  up to compete with Google Fiber
been withdrawn after years of protest and a court case that supported the county's right to uphold its zoning laws, Get the Cell Out was formed to spread the word about what was going on.  One of our complaints to the  now-removed by the Governor board at the time was that technology is changing so quickly that there is no way anyone can predict whether or not cell towers will be allowed, needed or even legal 30 years from now.   Without an "out" clause to protect the taxpayers' investment, what would happen if, let's just say for example, something else came along that was faster and more reliable than wireless?

They had no answer, of course, but it has been only four years, not thirty, and guess what?  Those cell towers are no longer seen as money makers and instead could be losing ground even quicker than we predicted.  Google Fiber announced its plans to connect several areas as test markets and Sandy Springs, Decatur and Avondale Estes were selected.  If all goes well, they are predicting a full scale launch in more cities across the US.     As more events like this one take place across the county, we could easily see ourselves evolving to a society that is  a lot less dependent on cell towers and a lot happier and healthier for it, too!

Comcast offers new product


The announcement that Google Fiber will be moving into the Atlanta market is already creating change for local consumers.

Comcast, for example, the area’s leading high speed internet provider, has announced plans to roll out 2 gig internet service to 1.5 million customers, starting this Spring.

That’s faster than the gigabit internet service Google Fiber plans to offer.

What's better about fiber?

Well, there may be many benefits, but here are just a few:

1.)  Not as easy for hackers to intercept a signal

2.) More reliable point-to-point transmission

3.)  Faster

4.)  Does not emit RF radiation

5.)  Does  not ask for you to give up school grounds to install its equipment.

6.)  Not listed on anything published by the CDC in terms of possible Carcinogens.

7.)  Does not lower property values

8.)  Does not  take advantage of children by seeking space on their playgrounds.

While we still have a lot to learn about how these products work, we are pleased that there are alternatives being brought to market that will challenge wireless for space in the conversation about what's safe and effective and allowed by local zoning.

Tuesday, March 10, 2015

T-mobile's Letters of Cancellation: DeKalb County Schools Are Cell Tower Free!

The Letters by T-mobile were obtained via an Open Records Request to DeKalb County Schools. Any citizen has the right to request any public document and it must be delivered or otherwise made available to the public within three business days. If you have attempted an Open Records Request and have not had success, please contact the state's office of Open Government: http://law.ga.gov/open-government


The DeKalb County School Board approved leases for T-mobile to lease the grounds at 9 schools in this metro Atlanta county in July 2011. Now, three and a half years later, the parents and community members who fought back against the unethical business practices finally have the victory they worked so hard to achieve.

T-mobile has cancelled the deal after a federal judge ruled in the favor of the county to uphold its existing zoning code and enforce it even when the school board insisted they were exempt. Congratulations to everyone who worked hard in support of keeping DeKalb's school free from the dirty money of the telecomm industry! Uniting across the traditional divides that keep these schools separated is what made the difference!



Now, the fight will move from the county to individual cities which are in the process of being formed by the state legislators right now! Cities want to control their own zoning process, which means the county's zoning code will fly right out the window.

T-mobile's employee was even on the volunteer board for Tucker 2014, the group working toward a city of Tucker, GA. A former ATT executive who helped start the first new city in more than 50 years in the Atlanta metro area has been meeting with communities and helping them get started on their own version of his uber-rich "outsource everything" city of Sandy Springs. While the new idea is getting some attention, it has yet to be seen if it can translate to areas with less of a financial cushion in their budgets for the high price of outsourcing.

Get the Cell Out - ATL is following the cell tower issue and how it might be affected if the Atlanta area becomes fully municipalized as the state lawmakers are hoping. You can read more about the attack on Tucker, a continuation of this cell tower issue, by reading this blog: SaveTuckerFromLakesideCity.blogspot.com.

Get the Cell Out - ATL would also like to recognize Crossroads News for their excellent reporting on this subject throughout the entire process! THANK YOU CROSSROADS NEWS!

Crossroads News:

Cell Towers Won't Be Built

Cell Towers Going to Schools

DeKalb Inks Deal for Towers

Towers Not a Done Deal

Cell Tower Opponents Doing All They Can

Meetings on Towers at Schools

Commissioners Give a Thumbs Down To Cell Towers at Schools

Some school board members change position on cell towers

Board had health information when it voted

We need a moritoria on cell towers   *  GTCO-ATL mentioned

Cell Tower Vote  * GTCO-ATL mentioned

Tuesday, March 3, 2015

Open Records Request Filed to Locate Cancellation of T-mobile's Contracts

We want to believe the sources who announced the cancellation of the Tmobile contracts with DeKalb County Schools, but if there is one thing we have learned through this four year battle, it's that you can never be too sure of anything. It's better to have proof in your hand than simply the word from someone who may not even be in office a few months later.

So, starting with the school system, this email was sent (see below).  They have three business days by law to respond.

2/25/20159:02 a.m.
To: Audrey Qualls
From: Get the Cell Out - ATL 
Subject: ORR For Cell Tower Contract Cancellations
Ms. Qualls,
We are sending this Open Records Request for the official signed documentation that indicates T-mobile has cancelled any contracts to place cell phone towers at our schools in DeKalb County.
Thank you,
XXXX XXXXGet the Cell Out – ATL

The "official" word was provided to us by several sources that were all reporting that Commissioner Jeff Radar had put out a public statement.  But, early in the process, we were frequently passed back and forth between the school board and the county commissioners, each claiming that the decision was out of their hands and we needed to contact the other.  While the commissioner is reporting that the remaining contracts were all cancelled, we would like to see it somewhere in writing.  Surely, that won't be too  much to ask.... right??

Sunday, February 15, 2015

Cell No! DeKalb County Residents WIN Cell Tower Fight!

Note from GTCO-ATL:  It is disappointing that the Briarlake  group, primarily Ms. Byrnes, continues until the very end to make the battle about their school and none other, especially in light of the fact that parents from Brockett are the ones who alerted them about the issue from the beginning and worked to unite the county over the issue via Get the Cell Out - Atlanta Chapter.   

However, for the sake of the children at all the schools and the communities that would have been affected, we remain happy and content to read ANY good news about cell towers, especially about this END to a long and difficult battle.  

We remain concerned, however, that the good zoning laws that protected the public will be thrown to the side if new cities are formed by residents not familiar with this subject and what the county went through to get this dismissal of the contracts.  We urge you to continue reading about our plight, now being pitted against the Briarlake neighbors we once sought out in order to help.  Our new  blog about the push toward new cities is here:  SaveTuckerFromLakesideCity.blogspot.com.


No towers like this one for DeKalb schools after a four year
battle comes to an end!

Posted by  on February 2, 2015 in DeKalb News  at the Champion

There will be no cell towers on school property in DeKalb County.
That’s the result of a four-year legal battle that began when the DeKalb County Board of Education voted in 2011 to allow the placement of cell towers on school property.

In a Nov. 3 letter to the DeKalb County School District, a T-Mobile representative stated the cell phone company “is exercising its right to terminate” an agreement between to parties which would have allowed the placement of a T-Mobile cell tower at Briarlake Elementary School.

T-Mobile had an agreement to place cell towers on the properties of nine county schools. After the agreement between the school district and the cell phone company came to light in 2001, residents around Briarlake Elementary formed No Briarlake Tower LLC and hired an attorney.

No Briarlake Tower “contended that, even though the DeKalb County school system is exempt from the DeKalb County zoning code if it uses residential property for educational purposes, a cellphone monopole owned and operated by a private company is not an educational use, and therefore T-Mobile was required to comply with the DeKalb County Zoning Code,” according to a statement by the group.

Eventually, the DeKalb County Board of Commissioners sided with No Briarlake Tower and denied a building permit to T-Mobile for the monopole at Briarlake Elementary and another school.

T-Mobile filed suit in federal court challenging the denial of the permits.
“The U.S. District Court of North Georgia granted DeKalb County a summary judgment in T-Mobile’s lawsuit regarding the cell tower planned for the Lakeside High School property,” according to a DeKalb County news release.  “Subsequently, T-Mobile canceled nine leases for cell towers on other school properties, which led to the voluntary dismissal of the second lawsuit regarding the cell tower at Margaret Harris Comprehensive School.”

“This is a victory for the children in DeKalb schools and the residents who live near DeKalb Schools,” said interim DeKalb County CEO Lee May. “The court’s decision is consistent with the county’s position that private actors on school property have to comply with the county’s zoning codes.”

T-Mobile also paid $5,400 to DeKalb County to cover court costs related to the litigation.

In a statement, Commissioner Jeff Rader said, “The decision is important because it helps limit exemptions to zoning laws intended to protect neighborhoods from incompatible development. Governments (federal, state, local and public schools) retain this important prerogative, but it should only be exercised to directly advance their public mission, not simply to generate revenue.”

Commissioner Kathie Gannon, in a statement, said she is “pleased with the federal court ruling and proud that DeKalb enforced this protection of our neighborhoods contained in our zoning ordinance.”

******************************************   ORIGINAL COMMUNITY ALERT *******



*************************************************************


“The cell towers will not be built on the school properties and the validity of our zoning procedures was upheld,” Gannon said. The “members of the Board of Commissioners believed the county needed to take an active role in upholding the county’s adopted ordinance and signed the letter urging the CEO not to issue the building permits.”

The Board of Commissioners will consider the issue of zoning for cell towers again soon when it votes on a new zoning ordinance.

“After considerable public input and a thorough investigation of relevant federal legislation, the current proposal would allow cellular antennas within or attached to nonresidential structures legally permitted in single-family neighborhoods,” Rader stated.

These uses would include houses of worship or other institutions that are legally permitted to be of sufficient height to make a cellular antenna attractive to a carrier.

“The new proposal would not allow the cell towers that were the object of the T-Mobile controversy,” Rader stated.

Stephanie Byrnes, a member of No Briarlake Tower, called the end of the legal battle “fabulous” and “just amazing.”

“I didn’t fathom that that could even happen and it did,” she said. “I felt confident that we would win. What I was concerned about was that we might win against T-Mobile but then another one might come along like AT&T.

“The law says you can’t have cell towers in residential areas,” Byrnes said.

“T-Mobile was going to try and get around that and they used the school board to try to do that—to try to get their towers in residential areas via the school property. That’s underhanded.

“The concern was that it would be a misuse of public land,” Byrnes said.

“The school system is [a] steward of public land. They are granted public land to operate in order to educate the children. The school board at the time…didn’t make a decision that put the kids first. They made a decision that put the hope for money first.”

Byrnes said the victory is “a huge win for DeKalb County.”

“We were fighting for the children,” she said. “That land is for the children. It’s not for private gain.”

Sunday, February 8, 2015

"Mobilize" Brings the Truth About Cell Phones to U.S. Audiences

Mobilize is a documentary on cell phone radiation and the long-term health effects on the brain and body: http://www.mobilizemovie.com.  More information is also available at The Center for Safer Wireless.


Friday, January 30, 2015

Ground Zero: DeKalb County




In 2013, when this video was compiled, Get the Cell Out - ATL and its varied partners throughout the county worked feverishly to help DeKalb communities protect their neighborhoods and schools.  Every person we met was shocked to hear about the plans to build these huge industrial structures right in the middle of residential neighborhoods, next to small children in their elementary schools, without a respectable explanation or opportunity to provide input into the process.

Schools should not be used as tax shelters for big businesses, regardless of whether or not they offer anything of value to the system.  Public schools are paid for by taxpayers for the sole purpose of educating the children.  To sublease the land right out from under the children is bad enough, but to do it without even respecting the local zoning regulations and safety ordinances put in place to protect people who live there defies the moral code of most real "persons" - even politicians in DeKalb.

We thank the commissioners, residents, students, parents and other advocates for safer wireless worldwide who have followed our story and helped us along the way.  As of today, it appears we have won a small battle for 12 schools in 12 neighborhoods in a growing megaopoly of the city of Atlanta.  But, just as this battle winds down, another picks up.

We invite you to follow our related blog called:  Save Tucker!  Our small town, outside Atlanta, with more than 122 years of history is being carved up by the state legislature and possibly set up for financial failure.  New cities are being proposed all around us and other cities are suddenly claiming annexation rights.  And, what's first on all their lists to take on in terms of start up services?

If you guessed "Planning and Zoning" then you would be correct!  And the city that started the trend?  Uber-rich Sandy Springs which was founded, in part, by a retired ATT executive.  And, the city movement that will supposedly "save" our own small town of Tucker?   Well, let's just say they have all the makings of a great "telecom" astro-turf group.  And, we should know.  We've been fighting them for years.  The fun will carry on a while longer...  so keep checking back here and on the Save Tucker! site, too!

Saturday, January 17, 2015

T-MOBILE SOUTH LLC, Plaintiff, v. DEKALB COUNTY, GEORGIA, Defendant.

T-MOBILE SOUTH LLC v. DEKALB COUNTY
CIVIL ACTION FILE NO. 1:13-CV-3447-TWT.

T-MOBILE SOUTH LLC, Plaintiff, v. DEKALB COUNTY, GEORGIA, Defendant.
United States District Court, N.D. Georgia, Atlanta Division.

October 22, 2014.

T-Mobile South LLC, Plaintiff, represented by Christopher Knox Withers, Arnall Golden & Gregory & Scott Ernest Taylor, Arnall Golden &; Gregory.

DeKalb County, Georgia, Defendant, represented by Dana Kristin Maine, Freeman Mathis &; Gary, John E. Jones, Jr., Dekalb County Law Department & Mark Andrew Begnaud, Freeman Mathis & Gary, LLP.

OPINION AND ORDER
THOMAS W. THRASH, Jr. District Judge.

This is a case in which the Plaintiff T-Mobile South LLC is claiming that the Defendant DeKalb County, Georgia violated the Telecommunications Act of 1996 when it refused to grant the Plaintiff a permit to construct a new cell tower. It is before the Court on the Plaintiff's Motion for Summary Judgment [Doc. 50] and the Defendant's Motion for Summary Judgment [Doc. 52]. For the reasons set forth below, the Plaintiff's Motion for Summary Judgment [Doc. 50] is DENIED, and the Defendant's Motion for Summary Judgment [Doc. 52] is GRANTED.

I. BACKGROUND
T-Mobile claims that it is currently unable to provide reliable wireless coverage to a particular area of DeKalb County, and that it needs to construct an additional cell tower to rectify this problem.1 Because there is no pre-existing structure in the area that would meet the required specifications,2 T-Mobile's engineers investigated several locations for the new cell site.3 They ultimately decided that Lakeside High School's property would be an ideal location.4 On October 10, 2012, T-Mobile entered into a leasing agreement with the DeKalb County School District.5 Under this agreement, the School District leased a parcel of land on Lakeside High School's property to T-Mobile for the construction of a cell tower.6 The agreement also allows the School District to install lighting equipment on the tower.

7  On March 29, 2013, T-Mobile submitted an application to the DeKalb County Department of Planning & Sustainability ("Planning Department") for a permit to build the cell site.8 On April 26, 2013, the Land Development Division for DeKalb County — via e-mail — requested additional information from Whitney Gill, a specialist who helped T-Mobile prepare its permit application.9 On June 13, 2013, Gill responded to this request by delivering additional documents.10 Then, on September 13, 2013, T-Mobile received an e-mail with an unsigned land development permit attached.11 The e-mail indicated that T-Mobile's submitted plans had been approved, and that it needed to have three copies of the permit signed by the School District before the permit could be presented to the Planning Department Representative for final signatures.12 However, on September 16, 2013, the Defendant's interim-CEO Lee May wrote a letter to the Director of the Planning Department "directing [him] to consider T-Mobile's permit application incomplete until it demonstrates compliance with applicable zoning regulations."13 A few days later, T-Mobile received a letter which stated in part:


Due to the policy of the interim CEO, it has been determined that T-Mobile's application is "incomplete" and must follow the county's established zoning requirements.
While it is true that property owned by a government agency can be exempt from zoning laws if the property is used for a governmental purpose; it does not appear that the proposed T-Mobile tower meets this requirement. Also, this school property is currently zoned Residential and would require rezoning to a Non-residential zoning district in order to allow for the construction of a cell tower.

14 T-Mobile brought suit against the Defendant DeKalb County under the Telecommunications Act, claiming that (1) the Defendant denied T-Mobile's permit request without substantial evidence in violation of 47 U.S.C. § 332(c)(7)(B)(iii), (2) the Defendant failed to respond to T-Mobile's permit request "within a reasonable period of time" in violation of 47 U.S.C. § 332(c)(7)(B)(ii), and (3) the Defendant is effectively "prohibiting the provision of personal wireless services" in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II). In addition, the Plaintiff requests an injunction requiring the Defendant to grant the requested permit. Both parties now move for summary judgment.

II. LEGAL STANDARD
Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law.15 The court should view the evidence and any inferences that may be drawn in the light most favorable to the nonmovant.16 The party seeking summary judgment must first identify grounds that show the absence of a genuine issue of material fact.17 The burden then shifts to the nonmovant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist.18 A "mere `scintilla' of evidence supporting the opposing party's position will not suffice; there must be a sufficient showing that the jury could reasonably find for that party."19

III. DISCUSSION
A. COUNTS I (SUBSTANTIAL EVIDENCE) AND III (EFFECTIVE PROHIBITION)

The Defendant argues that Counts I and III are not ripe because the Defendant has not rendered a final decision as to whether the cell tower may be built. The Defendant points out that T-Mobile may still be allowed to construct the cell tower despite the Planning Department's determination that the local zoning regulations apply to the proposal.20 Article III of the Constitution "limits the jurisdiction of the federal courts to actual cases or controversies and requires [the Court] to consider whether a plaintiff's claims are ripe."21 The question of ripeness "turns on the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration."22 Essentially, the Court is determining whether "the claim is sufficiently mature, and the issues sufficiently defined and concrete, to permit effective decisionmaking."23 The Telecommunications Act effectively codifies the ripeness requirement by providing a cause of action to "[a]ny person adversely affected by any final action . . . by a State or local government or any instrumentality thereof that is inconsistent with [47 U.S.C. § 332(c)(7)]."24 Thus, the Court must determine whether the Defendant has engaged in a "final action" denying the Plaintiff's request to construct a cell tower.

In interpreting the term "final action," the First Circuit's holding in Omnipoint Holdings, Inc. v. City of Cranston25 is instructive: "A final action . . . by a . . . local government or any instrumentality . . . must be one that marks the consummation of the instrumentality's decisionmaking process."26 The First Circuit reasoned that "we assume Congress knew the content of background law when legislating," and that a final agency action generally means a "final determination in a case by an administrative agency; that is, whether the agency rendered its last word on the matter."27
Here, T-Mobile has failed to establish that the Defendant conclusively denied T-Mobile's request for a permit. The Planning Department's conclusion — that local zoning laws apply to, and prohibit, T-Mobile's proposed cell site — simply means that T-Mobile must now follow the applicable zoning procedure in order to secure approval. For example, the letter T-Mobile received indicated that T-Mobile could apply to have the land for the proposed cell site "rezoned." Alternatively, in the event that T-Mobile's petition for rezoning is denied, or if T-Mobile believes that the zoning regulations do not apply, it may file an appeal with the Board of Zoning Appeals ("BZA") and plead its case.28 Under County Ordinance § 27-912:

The zoning board of appeals shall have the power and duty to hear and decide appeals where it is alleged by the appellant that there is error in any . . . decision made by an administrative official based on or made in the enforcement of the zoning ordinance.29
Until a rezoning request is denied, and the BZA rejects T-Mobile's contentions, the Defendant has not "rendered its last word on the matter."

The Seventh Circuit reached a similar conclusion in Sprint Spectrum L.P. v. City of Carmel, Indiana.30 There, Sprint entered into a lease with an Indiana resident allowing Sprint to place an antenna on his property.31 Sprint applied for a permit to construct the antenna, which was initially granted and then revoked shortly after.32 Sprint appealed the revocation to the Board of Zoning Appeals ("BZA"), which concluded that "the use for which the [permit] was granted . . . is not a Permitted Use under the . . . [relevant zoning ordinances]," and so a special use permit was required.33 Sprint then filed suit in federal court, and argued that "the local zoning ordinances do not require it to seek a special use permit."34 The district court dismissed the action after concluding that Sprint's claim was not ripe because there had been no "final action."35 The Seventh Circuit agreed:

The BZA's decisions do not completely foreclose Sprint from establishing wireless telecommunications facilities at the [relevant] site. In fact, those decisions merely map a procedural route that Sprint must take in order to proceed with its project. It must submit a plan to the commission and apply for a special use permit, neither one of which Sprint has done. Indeed, until Sprint is told definitely whether or not it is permitted to install an antenna . . . it is mere speculation whether it even has an injury to complain of. . . . The possibility remains that the city . . . will still approve Sprint's project. As the Supreme Court has recognized, local zoning authorities are flexible institutions that may give back with one hand what they have taken with the other. . . . If that is indeed the outcome, there would be no case or controversy to adjudicate because the BZA's action would be favorable to Sprint. Although Sprint at some point might have a mature claim, for now it must allow the local authorities to act with finality before pursuing a claim in federal court.36
In this case, there is a stronger argument for finding that T-Mobile's claim is not ripe for review. Unlike the plaintiff in Sprint Spectrum, T-Mobile has not even pursued an appeal before the local BZA.

In response, T-Mobile first argues that its proposed cell site is exempt from the zoning regulations, and so it has been improperly diverted into the zoning process. Specifically, T-Mobile asserts that the cell tower would be constructed on government property and serve a government purpose, and so it is exempt from the zoning regulations under Georgia law. This is not responsive. For the "final action" analysis, it is immaterial whether the zoning regulations have been rightfully applied. The question is simply whether the application of the zoning regulations operates as a conclusive denial of T-Mobile's permit request. If T-Mobile may still ultimately receive a permit — e.g., through a successful appeal to the BZA — then there has been no "final action."

T-Mobile then argues that it cannot appeal the Planning Department's decision to the BZA, and so the Planning Department's decision was a "final action." In support, T-Mobile argues that the BZA has no jurisdiction to hear its appeal because the Planning Department's decision was not a "zoning decision." T-Mobile claims that the Defendant acknowledged this much in its Brief. But the Planning Department sent T-Mobile an e-mail indicating that "T-Mobile's application [is] `incomplete' and must follow the county's established zoning requirements" and that "[the] school property is currently zoned Residential and would require rezoning to a Non-residential zoning district in order to allow for the construction of a cell tower."37 Thus, regardless of any inconsistent assertion made by the Defendant elsewhere in its Brief, the Planning Department's decision was obviously a "decision . . . based on or made in enforcement of [a] zoning ordinance," thus giving the BZA jurisdiction to entertain an appeal by the Plaintiff. Accordingly, Counts I and III of the Plaintiff's Complaint are not ripe for resolution.

B. COUNT II (SHOT CLOCK VIOLATION)

T-Mobile claims that the Defendant impermissibly failed to act on its permit request within a reasonable period of time. Under the Telecommunications Act, a "State or local government or instrumentality thereof shall act on any request for authorization to . . . construct . . . personal wireless service facilities within a reasonable period of time after the request is duly filed . . . taking into account the nature and scope of such request."38 The Federal Communications Commission has determined that "[a] `reasonable period of time' under § 332(c)(7)(B)(ii) . . . is presumptively (but rebuttably) 90 days to process a collocation application (that is, an application to place a new antenna on an existing tower) and 150 days to process all other applications."39 The FCC's interpretive ruling, however, provided "for further adjustments to the presumptive deadlines in order to ensure that the timeframes accommodate certain contingencies that may arise in individual cases, including . . . where the application review process has been delayed by the applicant's failure to submit a complete application or to file necessary additional information in a timely manner."

40 T-Mobile claims that the Defendant took more than 150 days to act on T-Mobile's permit request. Specifically, T-Mobile claims that it filed its application on March 29, 2013, and that it received the Planning Department's decision on September 18, 201341 — roughly 170 days later. However, the FCC has stated that "when applications are incomplete as filed, the timeframes do not include the time that applicants take to respond to State and local governments' requests for additional information."42 Here, the Defendant's Land Development Division sent T-Mobile an e-mail on April 26, 2013 — 28 days after T-Mobile submitted its application — indicating that the Defendant needed more information.43 T-Mobile responded to this request on June 13, 2013-48 days later.44 Consequently, the "shot clock" was tolled for at least 48 days, and so the deadline was October 10, 2013. Because the Planning Department issued its decision before that date, the Defendant did not violate 47 U.S.C. § 332(c)(7)(B)(ii).

In response, T-Mobile argues that the shot clock was not tolled because the requested information was "unnecessary."45 In support, T-Mobile claims that the Defendant "asked T-Mobile to . . . embed copies of all approved special exemption permit[s] from the zoning board of appeals . . . [but the proposed cell site] is exempt from local zoning regulations, so no zoning permits were required."46 T-Mobile also claims that many "items on the [Defendant's] checklist required nothing more than minor revisions to T-Mobile's construction drawings (i.e., adding a legend for erosion control standard codes, detailing the location of a silt fence, including a notation regarding concrete wash-out, and providing a landscape plan) . . . [but] [n]one of these items was essential to the . . . consideration of T-Mobile's permit application."47 This argument is unpersuasive. T-Mobile assumes — with no support — that the shot clock is tolled only if the requested information is ultimately found necessary to reach the correct decision. The FCC's interpretive ruling does not frame the exception this narrowly. As noted, the FCC stated — in general terms — that when an application is incomplete, the timeframe does not include "the time that applicants take to respond to State and local governments' requests for additional information."48 Here, the Defendant claimed that additional information was required to form a complete permit application, and T-Mobile submits no evidence indicating otherwise. That the Defendant may have been able to render a decision without these documents is immaterial. It is entirely possible that a complete application may include information that will ultimately prove unnecessary. Accordingly, the Defendant is entitled to judgment as a matter of law on Count II.

IV. CONCLUSION
For these reasons, the Court DENIES the Plaintiff's Motion for Summary Judgment [Doc. 50] and GRANTS the Defendant's Motion for Summary Judgment [Doc. 52].
SO ORDERED.

FOOTNOTES

1. Pl.'s Statement of Facts for Pl.'s Mot. Summ. J. ¶ 4.
2. ¶ 12.
3. ¶ 11.
4. ¶ 13.
5. ¶ 17.
6. ¶ 17.
7. ¶ 20.
8. ¶ 21.
9. Def.'s Statement of Additional Material Facts for Pl.'s Mot. Summ. J. ¶ 1.
10. ¶ 2.
11. Def.'s Statement of Facts for Def.'s Mot. Summ. J. ¶ 7.
12. ; Pl.'s Statement of Facts for Pl.'s Mot. Summ. J. ¶ 25.
13. Pl.'s Statement of Facts for Pl.'s Mot. Summ. J. ¶ 27.
14. Def.'s Statement of Facts for Def.'s Mot. Summ. J. ¶ 9.
15. FED. R. CIV. P. 56(c).
16. , , 158-59 (1970).
17. , , 323-24 (1986).
18. , , 257 (1986).
19. , , 1577 (11th Cir.1990).
20. Def.'s Resp. Br., at 4-6.
21. , , 1227 (11th Cir. 2006).
22. , , 201 (1983) (internal quotation marks omitted).
23. , , 589 (11th Cir. 1997) (internal quotation marks omitted).
24. 47 U.S.C. § 332(c)(7)(B)(v) (emphasis added).
25. (1st Cir. 2009).
26. at 47 (emphasis in original).
27. at 46 (internal quotation marks omitted) (emphasis added).
28. Def.'s Mot. Summ. J., at 10.
29. Def.'s Mot. Summ. J., Ex. E.
30. (7th Cir. 2004).
31. at 1000.
32.
33. (internal quotation marks omitted).
34.
35. at 1001.
36. at 1004.
37. Def.'s Mot. Summ. J., Ex. F (emphasis added).
38. 47 U.S.C. § 332(c)(7)(B)(ii).
39. , , 1867 (2013).
40. In the Matter of Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review and to Preempt Under Section 253 State and Local Ordinances That Classify All Wireless Siting Proposals as Requiring a Variance, 24 F.C.C. Rcd. 13994, 14010 (2009).
41. Def.'s Statement of Facts for Def.'s Mot. Summ. J. ¶ 9.
42. In the Matter of Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review and to Preempt Under Section 253 State and Local Ordinances That Classify All Wireless Siting Proposals as Requiring a Variance, 24 F.C.C. Rcd. 13994, 14014 (2009).
43. Def.'s Statement of Facts for Pl.'s Mot. Summ. J. ¶ 1.
44. ¶ 2.
45. Pl.'s Resp. Br., at 23.
46. Pl.'s Resp. Br., at 24.
47. Pl.'s Resp. Br., at 24.
48. In the Matter of Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review and to Preempt Under Section 253 State and Local Ordinances That Classify All Wireless Siting Proposals as Requiring a Variance, 24 F.C.C. Rcd. 13994, 14014 (2009).

Wednesday, January 14, 2015

It's Over!

Get the Cell Out - ATL was started in May 2011 
by just a few concerned parents simply walking 
their own neighborhood, talking with 
neighbors about the cell towers 
proposed for multiple schools 
across the county.  

We grew to an overwhelming outpouring of 
support when we hit an all time high of 75,000 voters 
who said "No" on a ballot referendum in July 2012 
when asked if they were in favor of 
"wireless telecommunications towers"
being placed on public school grounds.


Jan. 14, 2015:  Get the Cell Out - ATL has learned some news regarding our four year battle with T-mobile and our school system over the issue of cell phone towers that were approved for 9 schools back in July 2011.  


"The decision is important because it helps limit exemptions to zoning laws intended to protect neighborhoods from incompatible development," says County Commisioner Jeff Rader.

 "Governments (Federal, State, Local and Public Schools) retain this important prerogative, but it should only be exercised to directly advance their public mission, not simply to generate revenue."



We will have a statement on this issue in the coming days, but wanted to first get this information out to you as expeditiously as possible.  Dekalb County Commissioner Jeff Rader from District 2 has issued a press release, which can be read below, about the end to the six-way battle between the residents, the school board, the school administration, the county commissioners and the county CEO's office and, of course, T-mobile.  

Radar's statement was , unfortunately, not signed or dated. We believe it is legitimate, nonetheless.  But, we are still in the process of confirming its origin.  When we know more, we will post an  update on our website.  


Get the Cell Out - ATL was also informed just before the holidays by official sources that the school system's Superintendent Michael Thurmond reports that the contracts for all 9 of the schools originally slated for T Mobile cell towers "have been dropped."   As advised, we have waited until an "official announcement" before making any statements of our own, but we have remained on top of this issue and involved in the process as we have vowed to see it through to its conclusion.

Congratulations to everyone involved in every community who helped bring this subject to the forefront of their conversations and who held their elected officials accountable for their actions.   And thank you to every person involved in this fight and similar battles taking place across the country.  Your willingness to put yourself on the line in order to learn the truth and face skeptics should be an inspiration to others.  We would never been able to stand up to the "system" here if there were not success stories of others who had faced the same Goliath, and won their battle before ours.      


We appreciate Commissioner Jeff Rader , Commissioner Kathie Gannon and the entire DeKalb County Board of Commissioners for stepping up and taking on this fight against T Mobile while upholding the zoning code in our communities. 




If you have not educated yourself about the many adverse effects that have been documented about cell phone towers, please look over the many sources available on our website or email us with your questions.  A good source of information can also be found at the Center for Safer Wireless.

www.GETtheCELLoutATL.org

sayno2celltowers@yahoo.com

We also encourage everyone to thoroughly read the new zoning ordinance as suggested by Commissioner Rader and voice any feedback to the county commissioners and CEO's office as soon as possible. 

                                ---  Get the Cell Out - ATL


Now,  here is the statement from Jeff Rader's office:


Cell-phone Tower Update

One of the most pervasive signs of our mobile communications society is the proliferation of cell phone towers across the landscape.  In DeKalb, the mobile communications revolution occurred after the widespread development of the landscape, so the infill installation of these structures has been perceived as intrusive in many residential neighborhoods.  One recent decision and one pending regulation are relevant and noteworthy.

The recent noteworthy decision is the dismissal of a suit against DeKalb County by T-Mobile, a cellular provider.  T-Mobile had sued DeKalb seeking a building permit for structures on two DeKalb County School System (DCSS) properties in District 2: Lakeside High School and Margaret Harris Comprehensive School.  T Mobile had entered into a contract with DCSS seeking to invoke DCSS’s exemption from zoning regulation to erect the towers in residential districts where they are otherwise prohibited.  Encouraged by the DeKalb Board of Commissioners, the DeKalb County Administration declined to recognize the requested permits as exempt from zoning since the cell towers were not educational facilities.  T-Mobile sued, but canceled their contract with DCSS after the Federal Courts ruled in favor of DeKalb. T-Mobile also paid DeKalb County court costs incurred in our defense.  


Regardless of any bad publicity you may have heard about our county commissioners, 
they at least did the right thing for the communities they serve when they all signed a 
letter to the CEO's office, advising that any attempt to gain an "administrative permit"
instead of using the proper channels should be denied and our county's zoning ordinances 
should be upheld. 
The decision is important because it helps limit exemptions to zoning laws intended to protect neighborhoods from incompatible development.  Governments (Federal, State, Local and Public Schools) retain this important prerogative, but it should only be exercised to directly advance their public mission, not simply to generate revenue.

The pending decision on the regulation of cell towers is in our new zoning ordinance, which will soon be considered by the Board of Commissioners.  After considerable public input and a thorough investigation of relevant federal legislation, the current proposal would allow cellular antennas within or attached to nonresidential structures legally permitted in single-family neighborhoods.  These would include houses of worship or other institutions that are legally permitted to be of sufficient height to make a cellular antenna attractive to a carrier.  The new proposal would not allow the cell towers that were the object of the T-Mobile controversy.

The proposed policy turns on the inherent incompatibility of a free-standing antenna with a surrounding single family neighborhood, and not on the concerns that some citizens have about the radio waves generated by the antenna.  This is important because federal communications regulations prohibit local regulation of cellular antennas based on radio wave concerns.    We convened citizen stakeholders interested in this issue recently, who made suggestion on refining the policy for adoption.  

The new zoning ordinance can be found online at http://planningdekalb.net/wp-content/uploads/2015/01/finalDraftZoningCodeJan20151.pdf 


The commissioner can be reached at:  www.commissionerrader.com  *jrader@dekalbcountyga.gov*

Sunday, January 11, 2015

Woman's Death Blamed on Cell Tower Rerouting her 911 Call

Posted: Jan 09, 2015 4:00 PM EST
By Rodney Harris

CHEROKEE COUNTY, GA (CBS46) -
A Sandy Springs woman has died after her SUV sunk into a Cherokee County pond with her inside it.

The incident occurred in December when Shanell Anderson, 31, lost control of her SUV and drove into the pond while delivering newspapers.

Anderson calmly told a 911 dispatcher that her car was sinking and she needed help, but there was confusion over where Anderson was located.

Click here to listen to the 911 call.

Her call to the 911 dispatcher was eventually disconnected as her SUV continued to sink.

It was later revealed that the confusion over her location was due to a nearby cell phone tower, which routed her call to the Alpharetta 911 call center in Fulton County, instead of a call center in Cherokee County where the incident occurred.

The Fulton County map couldn't pull up Anderson's location because the pond was in Cherokee County.

Crews did eventually get to Anderson within 15 minutes, and she was taken to a hospital.

CBS46 News

Read more: http://www.cbs46.com/story/27804302/woman-dies-after-suv-sunk-into-pond#ixzz3OX6k5Bwn

Friday, December 19, 2014

Do Advocates for New Cities Understand Zoning?

There are several pro-city incorporation groups that have formed in DeKalb County, GA, recently and they may be looking for legislative sponsorship of their plans in the upcoming session at the Gold Dome in Atlanta this coming January.  There has been a bit of a city-frenzy that has also caused existing cities to start looking at their own long-term growth plans in terms of annexations.  Many residents have been concerned that they must side with "someone" or they might get "left behind" as Sen. Fran Millar (R-Dunwoody) called it.

So, the groups are currently attempting to prove their worth to the Intergovernmental Affairs Committee, which has taken the initiative to assist in the carving up and handing out of the DeKalb County pie.  It seems as though the county will be gobbled up before it erodes completely as was the case in Clayton County not too long ago.  Both Clayton and Dekalb, part of the greater Atlanta metro, were facing serious allegations by the Southern Association of Colleges and Schools (SACS) in the recent past, but Clayton's board lost the district's accreditation.  DeKalb only came close.

But, DeKalb is not out of the woods, yet.  The "divisions in the county" are part of the SACS analysis about what went wrong in the first place.  So, the legislators, who claim they support the Governor and his decision to replace some on the board, have determined that the best thing to do is to make those divisions permanent.  One would have expected them to read the full SACS report and work toward actually fixing the problem and encourage working together for the sake of the children.  But, this is DeKalb and things just don't work the way one would normally expect anywhere else.
Former Tucker-Northlake Representative Kevin Levitas
is no longer on the board now that it has been renamed
"Lavista Hills."  Is this a sign of trouble or is it part of a
strategy designed to remove the element of government
for the government instead of "for the people?"

With the help of some former legislators like Kevin Levitas, who represented Tucker - Northlake at one point and now favors a rival proposal for a city named "Lakeside" or "Lavista Hills," new  cities are going to end up on ballots possibly this coming May.  Residents, mostly unaware of the impact, will be asked to vote for inclusion or exclusion if they are personally located inside the boundaries.  Nevermind that they may have never heard of such a community or have any idea what is in the proposed charter documents.  They will be asked to vote based on their own reasons which might be correct or completely off  base.  And they will not have any details about what will happen to those left outside their boundaries, either.   When in self-preservation mode, these consequences too often come as after-thoughts.

Levitas, coincidentally, was also a member of the Tucker Civic Group and the Northlake Business Association.  The latter is the same one that disagreed with the "compromise map" that he had  personally agreed to only hours  prior to their opinion being sought.  He was also on the Tucker Business Alliance, the group that has favored the city of Tucker and that was involved with the city feasibility report that was conducted by Georgia Tech in 2006-07.  It showed Tucker was feasible as a city back then, but the community decided at the time to hold off on incorporating.  Now, Lakeside / Lavista Hills is pushing Tucker or threatening to divide it for good.

Levitas is not the only one wearing multiple hats in the group.  Michelle Penkava has been listed as the contact in the state documents for Tucker Together and Tucker 2015. She also is in control of the Tucker Parent Council, which has not held elections for its board of directors in the past three or more years nor has it posted contact information on its website or on the school system website. She was also the finance manager for a school board member who was the PTA President for the rival Lakeside, the same one that she now claims she is standing up against in an effort to preserve Tucker.

The first group to propose a city based entirely on a community that does not know its own boundaries and cannot decide what to call themselves, was announced in 2013 as "Lakeside City" and they touted that they would be required to take on three services.  Parks, Police and Zoning /Code Enforcement  were the three they thought they would start with.  Later they discussed "Paving" but now that they have had most of their roads paved by the county at large, they have been keeping quiet on that one.  They have spoken a lot about police lately, although that was not their concern when they first started their community discussions. They made a big deal about needing a park in order to manage one, but they have since redrawn their boundaries and left most of the large Henderson Park on the outside of their map.  So, that leaves one other item:  Zoning, Permits and Code Enforcement.  They grouped these together as "Public Works."


Are they just trying to make all their services start with the same letter, or are they really this confused about what each of these things actually involves?  And, if they are confused,  how will we know if they provided correct estimates when they worked with Carl Vinson business colleges to determine city feasibility?

What's worse than a misunderstanding of expected costs, is that there may be a misunderstanding about the actual requirements of the job and the important role it plays in the development of a safe and attractive community where people will want to live and where businesses will want to operate.

And, now more city groups are popping up and basically just copying the Lakeside  plan and putting it into their plans, too.  The main reason?  They all tell their audiences, "because it is one of the least expensive things a new city can provide while getting started."  So, essentially, because zoning is cheap on paper and sounds simple to the untrained layperson, it was service deemed to be good for starting a local government that no one asked for.

Zoning Nightmares Breed Need for More ...  
More Money, More Knowledge, More Time 
to Consider the Consequences of Decisions

We wonder if the new city committees have much insight or expertise on what a zoning board must really do and how the county has made major cutbacks in this area during the time of the recession, when there was little new construction going on and therefore the workload was light.

However, Get the Cell Out - ATL followers surely recall the big zoning issue that arose in 2011.  DeKalb County's school board approved large cell towers for 9 schools without much more knowledge or insight than the average layperson might have on the subject.

They also found themselves in quite a bit of trouble with their constituents over that approval, too.  Here are just some of the things that a county zoning official would have looked for that the average school board member would probably not know they should even be considering.  In fact, should we even want them to know about zoning when they were elected to focus on education anyway?  But, who will run for the city council where you live, if you are inside one on these maps?

Next time you hear a city advocate tell you or someone else about why they want "zoning" control.  Ask them about some of these issues so you can decide for yourself just how wise they are when they say they want to make these decision instead of letting the county handle it:

"The few, specific services that transfer are the ones we would know best 
how to govern for ourselves," says Jim, for the Tucker 2014 group.

What do our residents know about zoning for cell towers and what they should be looking our for when it comes to size, shape and placement of them, especially if they plan to allow them in residential areas or near schools?

The school board thought they knew what they were doing when they approved the old, outdated style of mounting hardware for cell towers that were being planned to go right next to elementary schools, high schools and one school for the disabled.  The outdated hardware had already been reviewed as insufficient by the telecom industry in certain high wind conditions.  And the weight allowed for the top of the tower (based on number of antennas and type of antenna) would have exceeded the maximum wind speed that the hardware would tolerate without fail.

When it was brought it to the attention of the school board members, they had no idea about the hardware issue.  Why?  Because they are not zoning experts.  They were willing to approve contracts based on the money without realizing that they were approving something that could potentially be a huge liability and could  result in an accidental or negligent death or injury lawsuit.

If the towers would have been built according to the old specs, then the laypeople on the board, who should have never been allowed to make zoning decisions, would have been at fault because they were willing to put a substandard structure next to an elementary school building, a busy road and nearby homes.

Another issue that came up was the standard set-back requirement for a cell tower.  The school board did not have any questions about that subject and approved plans to put the towers right next to the schools.   When local parents complained, the process went to the Planning and Zoning Department for review, but if we were all incorporated into cities, this issue would have been one for the city council to consider instead.

The county, which has a lot of experienced employees who know what to look for when approving or denying these type of applications, caught the error right away and returned the application as "incomplete" for a variety of items that were missing or against the existing zoning code.  But, the big error was that the cell tower plans did not follow the county's required set back of one and half times the height of the tower.  That means the school board was willing to violate the code in order to put towers with substandard hardware and too heavy of a load at the top right next to school buildings where children are attending school, well within the expected "fall zone."

The point is:  the average resident who steps up to run for city council seat may or may not be aware of what it takes to hold the office responsibly.  And, city advocates should not be simply "glossing over" the subject of zoning and using excuses about how it is a cheap thing to provide and then moving on to the next subject.   In reality, any of the county provided services could likely be provided in a "cheap" manner.

But, just because something appears cheap right now, does not mean it will remain that way.  And, just because some groups with experience can provide something in a quick or streamlined manner does not mean that a city created by "regular" people will be able to walk through the same steps and end up with the same quality of results.  Maybe they can do better, or maybe they will end up making decisions like the school board once did  - based on what they know and oblivious to what they don't know.

Zoning Isn't a Driver in New City Starts... so, What IS?

Do we really have an uprising of individual residents who want to take zoning away from the county so they can place it in their neighbors' hands?  (Or, one neighbor to represent 7,000 - 10,000 of them?)

Most people in our county don't even vote.  Are we really supposed to believe they are now suddenly aware of these types of administrative processing decisions that take place in our county every day so much that they want to control the entire process themselves?  We have nothing against local control if there is clearly a group of people who can show that they can do something better that would improve the overall quality of life for everyone affected.

So far we have only heard about the general desire to take away power or control from a perceived "other" group, but how will that shift of control benefit us? If we really want a better, stronger county we have to realize that we are the only ones who can decide for ourselves if the solutions before us will really be better, or if they could potentially be worse.  And the "trust me" sales pitches coming from politicians have to be thrown out if they aren't backed up with real information and details here.

This isn't Sandy Springs.  But, this idea of keeping the details quiet so that the public doesn't  have any reason to doubt you is something in the Oliver Porter book on incorporation that is discussed near the very beginning. The city groups aren't the only ones who know how to read.  If you are truly curious about their plans, we suggest you order a used copy on Amazon and follow along, chapter by chapter, with what is unfolding in front of you.

But, this isn't the same year it was when Sandy Springs started and don't share as much in common with Sandy Springs as we wish we did.  We don't have all this "extra" money that we can just shell out to make sure that what we are doing is going to be top of line.  That's simply not possible under the current economy and in this particular  part of the county.  Sandy Springs had 30 years of complaints behind them, driving their residents closer together as they became more involved in their desire to become their own city.  They let as many people into their circle of volunteers as  possible.  But, that's not happening here.

And, some of the same people who were a part of the school system and who were pushing that deal with the cell towers are involved in these city groups, too.  School board members, former school board members,  school system employees.  What do their maps resemble?  They look just like the Tucker and Lakeside high school attendance zones,  not necessarily the "communities" of interest and definitely not anything that shows respect or consideration for the business district being fought over.

If these cities were going to fix the problems, how?   Because a large part of the problems we have right now are directly tied to the schools, where most of these "leaders" were leading before their power was taken away by SACS.

If we can't count on them to lead our schools out of trouble, then what makes us think they can be trusted to control zoning, police, fire, water, sanitation and all the other services that a city will either start out controlling or seek to control eventually?

And, if they really aren't offering anything new, 
then the hassle and expense is all for naught.

We have problems in DeKalb, but the problems call out for CHANGE,
not more of the same.



*  Note:  A previous version of this article made reference incorrectly to ARC, Inc. as the Atlanta Regional Commission.  In context, the ARC actually referred to Ann Rosenthal Consulting.  We apologize to Ms. Rosenthal for the misunderstanding of her company.  She is the lobbyist for the Tucker CID and her own company, ARC Inc. and NOT the Atlanta Regional Commission.

Sunday, November 16, 2014

“Nobody likes towers, apparently.”

T-Mobile US goes to the Supreme Court vs. City of Roswell, GA

by RCR Wireless News

You’ve heard of someone not taking no for an answer, but T-Mobile US took a city’s refusal to the highest court in the land. This week the Supreme Court began hearing the case of T-Mobile South v. Roswell. We first reported this was going to court back in May, but opening arguments began this week.

Here’s a quick recap of the case: T-Mobile US wanted to build an additional tower in Roswell, Ga. The city rejected their request, but only with a vague no. T-Mobile US believes this is a violation of the Telecommunications Act of 1996′s “Preservation of Local Zoning Authority.” In it, when a city rejects the construction or modification of a wireless structure or facility it “shall be in writing and supported by substantial evidence contained in the record.” The city never gave a specific reason with supported evidence, instead turning in meeting minutes that included a laundry list of reasons why they didn't want a tower. The city considers this sufficient reason, but T-Mobile US begs to differ.

The best quote to come out so far from a justice?

“Everyone loves cellphones, apparently,” Justice Stephen Breyer said. “Nobody likes towers, apparently.”

The highest court in the land is now acutely aware of what the rest of us have been aware of for years.

All jokes aside, this case is a big deal for the tower industry as it could set long-term precedent for determining the specifics of tower deployment and how it interacts with local authorities.

Click here for more quotes from the justices hearing the case. We’ll report on this story more as the case develops.

Verizon Wireless goes to federal court vs. Columbia County, GA


It seems it’s the season for carriers to go to court. Verizon Wireless will soon get its day in a federal court. Verizon Wireless is suing Columbia County, Ga., claiming it was denied the right to build a 160-foot tower in the city. The problem? The city didn't put the reasons for the denial in writing. Ouch. With the other case in the Supreme Court with another city in Georgia you would have thought this city would have been a little more careful about that, but alas no. More news on this case as it develops.

Friday, November 14, 2014

Another DeKalb Official Gets Tangled in DeKalb's Web of Destruction

DEKALB COUNTY, Ga. from the AJC. — DeKalb County Superior Court Judge Cynthia Becker says she will resign when she has finished her work for the year weeks after a flurry of activity in the DeKalb County schools corruption trial.

In a letter, Becker said she already intended to leave office before the end of her term, "not due to any pressure from anyone, but because I am engaged to be married in early spring 2015."

Last month, Becker overturned the convictions of Patricia Reid and her ex-husband, Tony Pope. Two days later, an appeals court judge halted their release from jail.

Both were convicted in a DeKalb County school construction scandal last year. Former Superintendent Crawford Lewis testified during the trial. In her order, Becker noted a “lack of complete and truthful" testimony in nine specific areas from Lewis.

Lewis was accused of knowingly signing off on a scheme in which DeKalb schools' Chief Operating Officer Patricia Pope, now Pat Reid, funneled work to her architect husband, Tony Pope. Prosecutors said the fraudulent payments totaled more than $2.3 million.

Lewis was sentenced to spend one year behind bars by Becker last year, despite striking a plea agreement that would allow him to avoid jail time and spend one year on probation.

At the time, Becker said she was not bound to the plea agreement, but the district attorney said Becker agreed to the terms. Lewis served nearly a week in jail before being released on bond after his attorney filed an emergency motion.

Since then, attorneys for both sides have argued to keep Lewis out of jail.

Sunday, November 9, 2014

Cell Towers Still Upsetting People Coast to Coast!

Some neighbors upset by church plan for cell tower
The Associated Press
November 9, 2014
Updated 4 hours ago

HERNANDO, MISS. — Hernando's historic First Presbyterian Church and some of its neighbors are at odds over a proposal to put a 160-foot communications tower on property leased from the 150-year-old church.

Tower foes hope that city aldermen, who heard comments over the past week, will stop the plan.

The Commercial Appeal reports (http://bit.ly/1vZPDt1) that church leaders and members view the C Spire Wireless tower as a welcome source of income. Broadband advocates in Hernando want the improved cellular service.

Some neighbors, however, say the tower won't help the view or the property values.

Aldermen recently heard an appeal by C Spire of the city Planning Commission's denial of an application that would clear the way for the tower. Aldermen voted to send the issue back to the Planning Commission for reconsideration.

"This will not improve the value of my property," said Bruce Naillieux, who lives across the street from the church.

A neighbor, Shane Presley, showed aldermen a photo of the church in its serene setting: "This is a picture of small-town Southern America. Putting a tower here is encroaching."

First Presbyterian pastor Chip Hatcher said the tower would be more than 160 feet behind the church, obscured by trees. Church member Bill Bailey said, "We're for it."

John Wade, Jackson-based attorney for C Spire, and Jerry Skipper, site acquisition manager from Ridgeland, offered compromises that included a "sheath" design and site-elevation options that would lower the tower height by 10 feet or more. Also, they assured Alderman Gary Higdon, whose ward includes the site, that there would be no stormwater runoff problems.

Information from: The Commercial Appeal, http://www.commercialappeal.com

Read more here: http://www.sunherald.com/2014/11/09/5905028/some-neighbors-upset-by-church.html#storylink=cpy

Friday, November 7, 2014

Judge’s conduct questioned in DeKalb corruption case


By Mark Niesse - The Atlanta Journal-Constitution

DeKalb County prosecutors say Superior Court Judge Cynthia Becker knowingly tipped off defense lawyers before throwing out two convictions in a public corruption case, an action that could end her judicial career if found to be true.
Becker’s contact with the defense — without also informing prosecutors — has been reported to authorities, according to a court filing by the DeKalb district attorney’s office. The Georgia Judicial Qualifications Commission wouldn’t confirm or deny Friday that it has received a complaint.
Prosecutors suggested in their brief to the Georgia Court of Appeals that Becker’s communication may have influenced the case against Pat Reid and Tony Pope.
Reid, the ex-construction chief for DeKalb schools, and Pope, her former husband and an architect, were found guilty a year ago of manipulating school construction projects for personal gainbut they requested new trials. Reid is serving a 15-year sentence, and Pope got an eight-year sentence.
Pope’s lawyer withdrew his appeal after talking with Becker, clearing the way for her to overturn the jury’s guilty verdicts Oct. 27, prosecutors wrote. The Georgia Court of Appeals then stepped in to put her decision on hold.
Judges are prohibited from engaging in conversations with attorneys on one side of the case, but not the other, except to discuss administrative matters or emergencies, according to the Georgia Code of Judicial Conduct.
“If it deals with anything relating to the substance of the case pending, then that’s inappropriate,” said A. James Elliott, associate dean at the Emory University School of Law. “It would be highly unusual for a judge to call a lawyer and say anything about a pending case. They’re generally very careful about that.”
Ashleigh Merchant, a Marietta defense and appellate attorney, said judges shouldn’t give either side a heads-up before issuing an order.
“That’s kind of a big deal,” she said. “Somehow Pope’s attorney got tipped off that they needed to withdraw the notice of appeal. When they withdrew that notice, it gave jurisdiction back to the trial court.”
Becker and Pope’s attorney, John Petrey, didn’t return phone calls seeking comment Friday.
Reid’s attorney, Tony Axam, said he was made aware that Becker was going to sign an order, but she didn't discuss key facts of the case. Becker wanted to know where Reid was incarcerated, Axam said.
“Lawyers talk to judges all the time,” Axam said. “I don’t know of anything the judge did that was inappropriate in her conversations with lawyers in this case.”
Ken Hodges, a former Dougherty County district attorney, said he doesn't see a problem with Becker’s contact as long as she didn’t discuss the merits of the case or give advice.
“She just informed him what she was going to do. If that is in fact the truth, then she didn’t do anything wrong,” said Hodges, who is now in private practice. “If she said, ‘Y’all might want to take this action,’ … that would be improper.”
Becker sought to reverse the guilty verdicts against Reid and Pope because she said she didn’t find the testimony of former DeKalb schools Superintendent Crawford Lewis to be truthful.
Lewis had reached a plea deal with prosecutors to testify against Reid and Pope in exchange for a sentence of 12 months on probation. Instead, Becker decided to sentence Lewis to 12 months in jail.
The Court of Appeals overturned Lewis’ jail sentence Oct. 23, and Becker then dismissed the convictions of Reid and Pope, ordering that they receive new trials.
DeKalb prosecutors made an emergency appeal to halt Becker’s action, and the Court of Appeals agreed to do so last week.
The Court of Appeals will decide the case in the coming days or weeks.