HomeMy WebLinkAbout14 - Wireless Telecommunications Ordinance PA2012-057 - CorrespondenceJanuary 8, 2014
Iwa
Mr. James Campbell
Principal Planner
Community Development Department
100 Civic Center Drive
Newport Beach, CA 92660
Agenda Item No. 14
Public Comments
January 14, 2014
141, 1
------------
In Reference To: Revised Wireless Telecommunications Facilities Ordinance
Dear Mr. Campbell:
CalWA, the California Wireless Association appreciates receiving the City of Newport
Beach revised Wireless Telecommunications Facilities Ordinance (WTF) dated December
2013. We also received the e-mail notice that there will be the first City Council meeting
on the Planning Commission's recommended revisions to the City's WTO on January
14th.
CalWA and PCIA, the Wireless Industry Association, submitted a letter and detailed
comments in mid -2012 on the draft of the City's Wireless Telecommunications Facilities
(WTF) Ordinance. We are pleased that many of our comments and suggestions have
been incorporated into the revised ordinance, and that the new draft now recognizes
Section 6409 of the Middle Class Tax Relief and Jobs Creation Act of 2012 for the
collocation, removal and replacement of equipment at existing wireless facilities. We
also appreciate the careful consideration given by the Newport Beach Planning
Commission n the four public hearings and work sessions where potential changes to
the ordinance were discussed at length. However, even with the recent modifications to
the proposed WTF ordinance, further changes could better facilitate the responsible
deployment of wireless infrastructure improvements needed to adequately serve the
citizens of Newport Beach.
The PCIA/CaIWA letter dated July 19. 2012 (attached) clearly sets forth the continuing
need for improved wireless infrastructure. Wireless networks must adapt to dramatic
capacity demands due to an 1,800 percent increase in traffic over the last four years
and a projected growth of 18 times current levels of mobile data traffic over the next
five years. Mobile internet users are projected to outnumber wireline users in the near
future. Without ongoing improvements to the City's wireless backbone infrastructure,
dependable wireless services cannot be delivered to the citizens of Newport Beach.
The following provides CalWA's comments on the current December 2013 draft of
Chapter 20.49 of City Staffs proposed Wireless Telecommunications Facilities Ordinance.
IWG
Section 20.49.010 A. - Purpose
This initial statement should acknowledge the important role wireless infrastructure,
mobile communication and internet access now plays in Newport Beach related to the
City's economy, job creation, productivity and public safety. It should also acknowledge
that wireless infrastructure is a "utility" as defined by California's Constitution, and
should be permitted under similar requirements for other utility infrastructure
improvements.
Section 20.49.30 - Definitions, C. Antenna Classes
The antenna classes in the Planning Commission's finaldraft have been revised to
remove "Collocations ", formerly a Class 2 Facility. This has been made in compliance
with federal law, and will help facilitate anticipated 4th Generation /LTE upgrades at
existing sites within the City. However, additional sites will be needed, especially in high
traffic areas to avoid capacity issues associated with rapidly growing mobile internet
data transmissions.
DAS systems and "Small Cells" located within public rights of way are needed to provide
coverage and capacity in residential neighborhoods and in certain commercial areas.
Small Cells are also needed in "hot spot" - high traffic areas, primarily for capacity
reasons. CalWA suggests that smaller sites within public rights -of -way be allowed
through an administrative Encroachment Permit and /or Zoning Clearance process if the
project demonstrates compliance with the ordinances' design and screening standards.
Section 20.49.050 - Location Preferences, B. Prohibited Locations
The City should consider allowing wireless infrastructure in all zones in the City. The
majority of Newport Beach residents now use their wireless smart phones, tablets and
lap tops as their primary communication and internet access devices. They want these
devices to work in their homes as well as where they work, and while they are traveling.
We all want them to work everywhere, especially in an emergency situation. However,
CalWA understands that residents don't want wireless facilities that result in adverse
aesthetic impacts that affect views. CalWA suggests that wireless infrastructure, like
wireline telephone, electricity and natural gas utility infrastructure be allowed in all
residential zones through a Minor Use Permit or Conditional Use Permit process if the
project demonstrates compliance with the ordinances' design and screening standards.
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Section 20.49.050 - General Development and Design Standards
A. General Criteria
CalWA supports the City in its efforts to minimize visual impacts of providing wireless
infrastructure, and the use of reasonable aesthetic criteria to be used in evaluating
wireless applications. However, CalWA would like City Staff and City Council to keep in
mind the important "utility" role that wireless infrastructure plays in Newport Beach. No
other utility infrastructure must adhere to the standards and criteria set forth in this
ordinance. We respectfully request the City begin to look at wireless improvements in
the same manner as other utility providers.
F. Screening Standards, 6a.(6) and 6.b.(2), Support Equipment
Undergrounding support equipment on private property and within public rights -of -way
is a significant issue for wireless providers, especially in Newport Beach because of very
high groundwater levels along the coast and in other more elevated areas of the City.
Major rainstorms and isolated thunderstorms in the past have resulted in significant
damage to support equipment, especially where flush -to -grade vents are required. This
has resulted in wireless carrier losses of millions of dollars over the years and the loss of
coverage and capacity in local networks during major rainstorms, which adversely
affects public safety during emergency situations. The revised wireless ordinance does
provide reasonable flexibility for above grade support equipment. However, we are
requesting above grade vents for telecom underground vaults be allowed to be 36
inches above the finished grade; not 24 inches. The wireless providers can meet the
screening requirements set forth in Section 20.49.050 6.b.(2), and will paint or coat
above grade equipment to be visually compatible with its surroundings, however, the
wireless providers would like to avoid any requirements for additional landscape
screening because of the water infrastructure and maintenance requirements.
Conclusion
Reliable wireless communication is no longer a luxury. Wireless facilities provide the
basic infrastructure for telecommunication /broadband accessibility that allows the
citizens of Newport Beach high -speed Internet access. The City currently has a unique
opportunity to facilitate expanded and improved wireless services to its residents,
businesses and visitors by amending its WTF Ordinance in consideration of CalWA's
suggested revisions.
CalWA greatly appreciates the Newport Beach Planning Commission's careful
consideration of our and other wireless providers input into the WTF, and their
recommended changes to the City's wireless ordinance. It is a major step forward from
your current ordinance that CalWA supports. We appreciate your consideration and
IWG
support to further our mutual goal of implementing and deploying responsible and
timely wireless infrastructure improvements to serve the City of Newport Beach.
Respectfully submitted,
W. Dean Brown
California Wireless Association Board of Directors
Co- Chair, Regulatory Committee
714 - 328 -6313
wdbrown@planningconsortium.com
CC: PCIA - The Wireless Infrastructure Association
901 North Washington Street, Suite 600
Alexandria, Virginia 22314
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PCIA
July 19, 2012
VIA ELECTRONIC MAIL
Newport Beach Planning Commission
c/o Janet Johnson Brown, Associate Planner
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92663
jbrown @newportbeachca.gov
Re: Proposed Amendments to Wireless Telecommunications Facilities Ordinance
Dear Ms. Brown,
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PCIA —The Wireless Infrastructure Association ( "PCIA" )l and the California Wireless
Association ( "CalWA ")2 writes to provide comment on the City of Newport Beach's proposed
amendment to the Newport Beach Municipal Code to update regulations regarding wireless
telecommunications facilities in light of the scheduled public hearing on the matter before the
Planning Commission on Thursday, July 19, 2012. Attached please find the proposed
amendments marked with comments. PCIA and CalWA respectfully request that Planning
Commission defer action on this item until the industry has had an opportunity to sit down with
staff and discuss the concerns reflected within this letter and in the attached mark -up.
PCIA and CalWA applaud the City of Newport Beach for recognizing that there have
been numerous changes in Federal and State law regarding local regulation of wireless facilities,
as well as a tremendous increase in the demand for wireless services that required the industry to
change how it responds and keeps up with demand from its subscribers, especially in
sophisticated communities like Newport Beach. We encourage the City to craft an ordinance that
enables logical and intelligent deployment with an objective set of standards that comply with
state and federal law and allows the timely provision of quality wireless service. To this end, in
order to ensure that Newport Beach's efforts to modernize its wireless ordinance are as
comprehensive as possible, PCIA and CalWA offer the attached mark -up of the draft
amendments.
'PCIA is the national trade association representing the wireless infrastructure industry. PCIA's members develop,
own, manage, and operate towers, rooftop wireless sites, and other facilities for the provision of all types of wireless,
broadcasting and telecommunications services. With a mandate to facilitate the deployment of wireless
infrastructure, PCIA and its members partner with communities across the nation to effect solutions for wireless
infrastructure deployment that are responsive to the unique sensitivities and concerns of these communities.
'CaIWA is a non -profit organization made up of volunteers who work in the wireless /telecommunications industry
throughout California. Its goal is to raise awareness about the benefits of and to promote the wireless industry, to
educate the public and political leaders on issues of importance to the wireless industry, and to cultivate working
relationships within and between the industry, the public and political leaders.
PCIA
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Despite the importance of wireless services and its potential for job creation, local review
of the placement of wireless facilities remains a persistent barrier to the deployment of wireless
infrastructure. For example, the proposed amendments to Newport Beach's Municipal Code
could better facilitate the deployment of wireless infrastructure in order to bring wireless service
to Newport Beach's residents. PCIA and CalWA hope to work together with the Planning
Commission to find a solution for wireless infrastructure deployment that is responsive to the
City of Newport Beach's needs and concerns. For this reason, PCIA and CalWA urge that
Planning Commission defer action on this item to allow time to consider and discuss the
industry's concerns.
The Need for Wireless Infrastructure
Wireless services, from basic voice communication to mobile broadband, enable
communication, productivity, mobility, and public safety. Wireless infrastructure is the backbone
of wireless networks; without it, wireless services cannot be delivered to users. Wireless
infrastructure enables use of spectrum by providing the vital link between the end -user and the
network. The strategic deployment of wireless infrastructure improves the efficient use of limited
spectrum resources, which in turn improves the performance of wireless services.
Wireless providers are currently undertaking a multi- faceted effort to deliver next -
generation wireless services, such as 4G LTE, in addition to ensuring that current and next -
generation networks have the capacity to handle the surge in traffic that comes with the increased
adoption rates of smartphones, tablets and other data devices. Wireless networks must adapt to
growing capacity demands due to an 1,800 percent increase in traffic on U.S. wireless networks
in the last four years and a projected growth of eighteen times current levels of mobile data
traffic in the next five years.4 Mobile Internet users are projected to outnumber wireline Internet
users by 2015, when a majority of Americans will utilize a wireless device as their primary
internet access tools This will result in two billion networked mobile devices by 2015.6
The need for rapid deployment extends beyond mere consumer convenience. More than
70 percent of all emergency calls are placed using a wireless device .7 The ability to access fire,
rescue and police services may be significantly hindered without wireless infrastructure,
especially for those relying on wireless as their sole form of voice communications. As noted by
the Federal Communications Commission ( "FCC "),
[T]he deployment of facilities without unreasonable delay is vital to promote public
safety, including the availability of wireless 911, throughout the nation. The importance
of wireless communications for public safety is critical, especially as consumers
'Mobile Future, 2011 Mobile Year In Review (Dec. 2011), available at http://mobilefuture.org/page/- /images /2011-
MYIR.pdf.
Quentin Hardy, The Explosion of Mobile Video, N.Y. Times, Feb. 14, 2012, available at
http : //bits.blogs.nytimes.com/2012 /02/14 /the- explosion -of- mobile- video /.
s Hayley Tsukayama, IDC: Mobile Internet Users to Outnumber Wireline Users by 2015, Washington Post, Sept. 12,
2011, available at http : / /www.washingtonpost.com/blogs /post - tech/post/idc- mobile- intemet- users -to- outnumber-
wireline- users -by- 2015 12011 /09 /12 /gIQAkZP7MK_blog.html ?wprss =post -tech.
' Mobile Future, 2011 Mobile Year In Review.
7 FCC.gov, Guide: Wireless 911 Services, available at http: / /www.fcc.gov /guides /wireless -911- services.
PCIA
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increasingly rely upon their personal wireless service devices as their primary method of
communication.
8
As NENA observes:
Calls must be able to be made from as many locations as possible and dropped calls must
be prevented. This is especially true for wireless 9 -1 -1 calls which must get through to
the right Public Safety Answering Point ( "PSAP ") and must be as accurate as technically
possible to ensure an effective response. Increased availability and reliability of
commercial and public safety wireless service, along with improved 9 -1 -1 location
accuracy, all depend on the presence of sufficient wireless towers.9
For this reason, decisions on siting requests made by the personal wireless service industry were
not intended by Congress to be subjected "to any but the generally applicable time frames for
zoning decision [s].i10 Thus, the adoption of special procedural schemes unique to wireless siting
requests should be avoided.
The FCC Shotclock Declaratory Ruling and the California Permit Streamlining Act
In addition to the provisions of Section 337(c)(7) of the Communications Act of 1934
referred to in the staff report, subsection (13)(ii) of that section contains another requirement that
the City should keep in mind when crafting its new ordinance. That provision requires that a
"local government or instrumentality thereof shall act on any request for authorization to place,
construct, or modify personal wireless service facilities within a reasonable period of time after
the request is duly filed with such government or instrumentality, taking into account the nature
and scope of such request."
The FCC recently adopted a Declaratory Ruling on November 18, 2009 under this
subsection holding that "a `reasonable period of time' is, presumptively, 90 days to process
personal wireless service facility siting applications requesting collocations, and, also
presumptively, 150 days to process all other applications. "'' Given the rate at which demand for
advanced wireless services has been growing, and in particular the growth in the demand for
bandwidth as a result of adoption of smart phones and wireless - enabled laptops and tablets, the
need for speedy local approvals of proposed wireless deployments has become truly critical to
providing the wireless services consumers demand.
Indeed, the FCC's presumptive timeframe for action may be superfluous given that
California law has, for decades, contained absolute deadlines by which action must be taken. As
you are no doubt aware, the California Permit Streamlining Act imposes a 60 -day time limit for
approving or denying a requested permit after a project has been determined to be categorically
s Petition for Declaratory Ruling To Clark 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, Declaratory Ruling, 24 FCC Rcd 13994, 14021 ¶ 71 (2009) ( "Shot Clock Ruling "), recon.
denied, 25 FCC Rcd 11157 (2010), affd, City of Arlington, Tex., et al. v. FCC, 2012 U.S. App. LEXIS 1252 (5th
Cir. 2012).
'Shot Clock Ruling, at 36.
0 H.R. Conf. Rep. No. 104 -458, 104th Congress, 2nd Sess. 208 (1996).
" Shotclock Ruling.
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PCIA calwa
exempt from CEQA12 or a negative declaration or mitigated negative declaration has been
adopted. 13
The Wireless Provisions in Middle Class Tax Relief and Job Creation Act of 2012
Staff failed to mention the Middle Class Tax Relief and Job Creation Act of 2012,
enacted with bipartisan support and signed into law by President Obama on February 22, 2012.
One of the measures included in the Act was the creation of a nationwide interoperable
broadband network for first responders. In addition to authorizing the FCC to allocate necessary
spectrum for this new interoperable network, the Act also contained provisions designed to
establish voluntary incentive auctions of wireless spectrum, which are expected to raise $15
billion over the next eleven years. Seven billion dollars of the auction proceeds have been
allocated for public safety broadband network build out.
The Act reflects an implicit acknowledgement that realizing the financial viability of the
spectrum auctioned depends on the ease with which purchasers can deploy the infrastructure
needed to utilize it. At the same time, it allays local concerns over the potential impact of the
construction of new sites. In a carefully crafted attempt to address both industry and local
concerns, Section 6409 of the Act streamlines, and thereby incentivizes the use of, modification
of existing sites in lieu of new builds. Although the staff proposals reflect a similar recognition
of the need for streamlined review of modifications, PCIA and Ca1WA provide herewith a
detailed explanation of this recent law due to concerns that the definitions provided in the report
fail to reflect those adopted and utilized by the FCC.
Section 6409 of the Act requires state and local governments to approve an eligible
facilities request for the modification of an existing wireless tower or base station that does not
substantially change the physical dimensions of such tower or base station. Section 6409 applies
to "eligible facilities requests" for modification of existing wireless towers and base stations. The
Act defines "eligible facilities request" as any request for modification of an existing wireless
tower or base station that involves:
• Collocation of new transmission equipment;
• Removal of transmission equipment; or
• Replacement of transmission equipment.
Many of the terms employed in the section are concepts that were hammered out in negotiations
between local government and industry representatives in an agreement that was adopted by
reference in regulations promulgated by the FCC. Thus, for example, "collocation" has been
defined as "the mounting or installation of an antenna on an existing tower, building or structure
for the purpose of transmitting and /or receiving radio frequency signals for communications
purposes." 14
12 Gov. Code § 65950(a)(4).
"Gov. Code § 65950(a)(3).
14 Nationwide Programmatic Agreement for the Collocation of Wireless Antennas (2001), available at 47
C.F.R. Part I, Appendix B ( "Collocation Agreement "). See also Petition for Declaratory Ruling To Clarify
Provisions ofSection 332(C)(7)(B) To Ensure Timely Siting Review and To Preempt Under Section 253 State
and Local Ordinances That Classy All Wireless Siting Proposals as Requiring a Variance, Declaratory Ruling, 24
El
PCIA
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The same agreement also addressed the issue of what constitutes a substantial change in the
size of a tower:
The mounting of the proposed antenna on the tower would increase the existing height of the
tower by more than 10 %, or by the height of one additional antenna array with separation
from the nearest existing antenna not to exceed twenty feet, whichever is greater, except that
the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if
necessary to avoid interference with existing antennas; or
The mounting of the proposed antenna would involve the installation of more than the
standard number of new equipment cabinets for the technology involved, not to exceed four,
or more than one new equipment shelter; or
The mounting of the proposed antenna would involve adding an appurtenance to the body of
the tower that would protrude from the edge of the tower more than twenty feet, or more than
the width of the tower structure at the level of the appurtenance, whichever is greater, except
that the mounting of the proposed antenna may exceed the size limits set forth in this
paragraph if necessary to shelter the antenna from inclement weather or to connect the
antenna to the tower via cable; or
The mounting of the proposed antenna would involve excavation outside the current tower
site, defined as the current boundaries of the leased or owned property surrounding the tower
and any access or utility easements currently related to the site. 15
In this agreement, a "tower" is defined as "any structure built for the sole or primary purpose of
supporting FCC - licensed antennas and their associated facilities. 16 While the concept of a "base
station" is not referenced in the agreement, the term has a long - established meaning consistently
used throughout both FCC regulations and case law, namely a fixed location from which
wireless signals are transmitted. For example, FCC regulations define a "base station" as "[a]
station at a specified site authorized to communicate with mobile stations;" or "A land station in
the land mobile service." 17 We urge the Planning Commission to use these well recognized
definitions within its Ordinance.
FCC Red 13994, 14021 1171 (2009) ( "Shot Clock Ruling "), recon. denied, 25 FCC Red 11157 (2010), affil, City
of Arlington, Tex., et al. v. FCC, 2012 U.S. App. LEXIS 1252 (5th Cit. 2012).
"Collocation Agreement, note, above.
16 Id.
"See, e.g., 47 C.F.R. § §24.5, 90.7.
PCIA
Conclusion
calwa
Reliable wireless communications are no longer a luxury. Wireless facilities provide a
platform for broadband accessibility, creating a link from the City of Newport Beach to the
world through high -speed Internet access. The City of Newport Beach has an opportunity to
facilitate expanded wireless coverage to its citizens, businesses, and first responders by moving
forward with amending its code in consideration of the wireless infrastructure industries'
suggestions provided herewith.
PCIA and CalWA hope to participate in the ordinance revision process as it develops, if
Planning Commission defers action on this item to consider the industry's concerns. We
appreciate your support to further our mutual goal of implementing and deploying responsible
and timely wireless infrastructure to serve the City of Newport Beach, CA.
Sincerely,
/s/
Julian Quattlebaum
Co- Chair, Regulatory Committee
California Wireless Association (CalWA)
800 S. Pacific Coast Hwy # 448
Redondo Beach, CA 90277
310 - 356 -6950
jq @channellawgroup.com
/s/
Sean Scully
Co- Chair, Regulatory Committee
California Wireless Association (CalWA)
800 S. Pacific Coast Hwy # 448
Redondo Beach, CA 90277
818 - 426 -6028
permittech @verizon.net
/s/
Kara Leibin Azocar
Government Affairs Counsel
PCIA —The Wireless Infrastructure Association
901 N. Washington St., Suite 600
Alexandria, VA 22314
703 -535 -7451
Kara.Azocar@pcia.com
Paul
w/ www.oboylelaw,com
e/ pro @oboylelaw.com
"pECF VED AFTER AGE!�31,1
R. O' B o y �o�:_, 11
Paul R O'Boyle, JD /MBA
13269 Deer Canyon Place
San Diego, CA 92129
Honorable Mayor and Members of the City Council
City of Newport Beach
Community Development Department
100 Civic Drive
Newport Beach, CA 92660
777-/Y
t/ (858) 922 -8807
f/ (858) 484 -7831
January 13, 2014
RE: Newport Beach Municipal Code — Chapter 20.49 - Comments on Draft WTF
Ordinance
Dear Honorable Mayor and Members of the City Council:
Crown Castle NG West, LLC. ( "Crown "), has been involved for some time with
the City of Newport Beach ( "City ") in the rewriting of the City's Wireless
Telecommunications Facilities Ordinance ( "Ordinance "). While the process has been
long and arduous, the current Draft Ordinance is vastly improved from its initial
iterations and the City and City Staff should be commended. Unfortunately, the current
Draft Ordinance misses a golden opportunity to be a proactive ordinance as opposed to
a reactive ordinance. In particular, the Draft Ordinance does not encourage the
deployment of newer, small cell technology, such as DAS, that improves wireless
coverage and capacity solutions without creating the same level of visual impacts to the
community as traditional "macro" wireless cell sites.
The wireless industry has matured to the point that industrial and commercial
areas of the City, for the most part, have presently acceptable coverage. While Crown
disagrees with City Staffs recommended treatment of Class III (ROW) facilities as
compared to Class II (visible) facilities in these areas, Crown can live with the defined
protocol. In residential areas, however, Crown strongly disagrees with City Staff
recommendations.
With the surging use of smart phones, tablets and other wireless devices at
home, there has been a corresponding increase in demand to provide this "last mile" of
wireless coverage at people's homes. The challenge is how are wireless companies to
provide such coverage when ordinances, such as the City's Draft Ordinance effectively
precludes wireless facilities in residential areas? The Draft Ordinance does not
acknowledge this trend, nor does it provide a reasonable and viable path forward to
meet City constituents' wireless needs.
In a perfect world all utility infrastructure (electric, gas, water, and telephone, etc.)
would be invisible to the average person. The reality of the situation is that is not the
case, particularly for wireless infrastructure. Technology has not evolved to the point
where antennas can be placed underground and work effectively. Instead of just
analyzing whether a facility is "visible" or not, the Ordinance should also evaluate
wireless telecommunication facilities based on their size. Physically smaller and less
obtrusive facilities should be encouraged by receiving preferential processing treatment.
If the wireless industry were given a City- defined small cell exemption or administrative
review, the City could help steer wireless providers to deploy less visibility obtrusive
equipment.
At several Planning Commission hearings Crown proposed that the City include
a small cell exemption and that the City define the physical dimensions that would
constitute a small cell. City Staff responded by saying they did not want to define the
physical dimensions of a small cell because they did not want to discriminate between
various competing technologies. This position is a red herring. In other jurisdictions,
such as Ventura County, major wireless providers such as AT &T, Verizon as well as
telephone corporations such as Crown have all accepted the County's definition of 8.2-
cubic feet or smaller qualifying as a small cell. The City of Costa Mesa has also
provided the wireless industry with physical dimensions that would qualify as small cell
technology. It is in the City of Newport Beach's interest to take a similarly proactive
approach and specifically define small cell technology so as to drive the deployment of
less intrusive technologies.
If you have any questions or need additional information regarding these
comments, please do not hesitate to contact me. Thank you.
Sincerely,
Paul R. O'Boyle
CC: Jim Campbell, Principal Planner
P.2of2