Aaron M. Shank
[email protected]
Porter Wright
Morris & Arthur LLP
41 South High Street
Suites 2800-3200
Columbus, OH 43215
Direct: 614.227.2110
Fax: 614.227.2100
www.porterwright.com
October 30, 2025
VIA EMAIL
Mayor & City Council
Union City
([email protected])
34009 Alvarado-Niles Road
Union City, CA 94587
RE: AT&T’s Response to Appeal from Approval of Wireless Facility 32975 Alvarado-Niles Road, Union City
AT&T Site ID CBL00155
Dear Mayor Singh, Vice Mayor Sakakihara, and Councilmembers Nishihira, Patiño, and Wang:
I write on behalf of New Cingular Wireless PCS, LLC d/b/a AT&T Mobility (AT&T), to respectfully request the City Council affirm the Planning Commission’s approval of AT&T’s application seeking to place a new stealth rooftop wireless communications facility (“Proposed Facility”). AT&T has taken great care to site and design the Proposed Facility to meet applicable county, state, and federal standards.
The Proposed Facility will address a critical need to improve wireless service coverage to this portion of Union City. Indeed, AT&T’s significant gap in service coverage affects hundreds of city residents, businesses, and visitors. In addition to providing significant improvements to 4G LTE and 5G services, the Proposed Facility will provide FirstNet services to support first responder communications.
Some residents have appealed the approval based largely on safety and aesthetic concerns. But the Proposed Facility has been carefully sited to comply with applicable regulations and to minimize community impacts.
Indeed, as the evidence in the public record shows, it will comply with applicable safety laws, including the Federal Communications Commission’s radio frequency emissions regulations. The Proposed Facility is the best available and least intrusive means to close AT&T’s significant service coverage gap in this portion of the city.
AT&T’s Proposed Facility
AT&T’s project team developed the current proposal in collaboration with the property owner and the city. As the Planning Commission Resolution approving AT&T’s application explains, the Proposed Facility “will be screened and set back from the right-of-way as much as feasible” and it “will be enclosed in a rooftop structure designed to match the architecture of the building” with related equipment “located on the ground in an enclosure, also designed to match the building.” As the photosimulations of the Proposed Facility that were submitted with the application show, this facility will blend well with its surroundings and will have a minimal visual impact. AT&T is particularly proud of the proposed design, which will hardly be noticeable as anything other than a second level to the existing building ATTACHMENT 10
City Council, Union City
October 30, 2025
AT&T Needs the Proposed Facility to Provide and Improve Wireless Services AT&T’s radio frequency engineers have identified a significant gap in service coverage and capacity in the city, including a large area that is roughly bordered by Whipple Road to the north, Dowe Avenue to the east, Ontario Drive to the south, and Santa Maria Drive to the west. The Proposed Facility is also an important part of AT&T’s commitment to supporting public safety through its partnership with FirstNet. Created by Congress, the First Responder Network Authority selected AT&T to build and manage this first-ever nationwide first responder wireless network. The Proposed Facility will provide new service on Band 14, which is the nationwide frequency set aside by the U.S. government for public safety.
Deployment of FirstNet in the target gap area will improve public safety by putting advanced wireless technologies into the hands of public safety agencies and first responders.
AT&T worked hard to carefully select this location to reduce impacts to the community while maintaining a clear line-of-sight for signals to provide reliable in-building wireless service coverage to the target gap area. AT&T thoroughly investigated alternative sites and designs, evaluating numerous properties in the gap area, to make sure that its Proposed Facility is the least intrusive means to close AT&T’s significant service coverage gap. These alternatives are listed and analyzed in AT&T’s Alternative Sites Analysis. (See Attachment B.) As the Planning Commission’s approval resolution explains, the Proposed Facility “will fill a significant gap in coverage and capacity shortfall in the applicant’s service area and, as designed, is the least intrusive means of doing so.” Indeed, the city’s consultant confirmed these conclusions.
Denial of AT&T’s Application Would Materially Inhibit AT&T From Providing and Improving Vital Wireless Telecommunications Services
Placing the Proposed Facility as proposed will close AT&T’s significant gap in in-building coverage in this large gap area. AT&T’s Application seeks to provide hundreds of residents, businesses, and visitors with adequate and reliable in-building wireless services and improving first responder communications in the area.
Denial would leave AT&T without any means to reliably serve this area.
The Proposed Facility will improve critical wireless services to the area, which are needed now more than ever as customers increasingly use mobile phones as their primary communication devices. In fact, the Center for Disease Control and Prevention studies the extent of mobile phone use, and recently found that more than 91% of California adults, and more than 98% of Californians under age 18, rely exclusively or primarily on wireless communications in their homes.1 Additionally, customers rely on their mobile phones to do much more than just voice communication, including E911 service, video streaming, GPS, Internet access, and texting. In fact, California reported to the FCC that there were more than 23.3 million wireless calls and 98,065 texts to 911 in 2023 (the most recent year for state level data).2 Approval of AT&T’s Proposal Comports with Federal Law
The federal Telecommunications Act of 1996, 47 U.S.C. § 332 (“TCA”) provides rights to wireless service providers and establishes limitations upon state and local zoning authorities with respect to applications for permits to construct personal wireless service facilities. The United States Supreme Court has explained that the Act was enacted in part to prioritize and streamline deployment of wireless 1 See Wireless Substitution: State-level Estimates from the National Health Interview Survey, 2023, available at Wireless Substitution: State-Level Estimates from the National Health Interview Survey, 2023. 2 See Sixteenth Annual Report to Congress on State Collection and Distribution of 911 and Enhanced 911 Fees and Charges (Dec. 30, 2024), at 14, available at FCC-16th-Annual-911FeeReport-2024.pdf.
City Council, Union City
October 30, 2025
technologies on a national basis.3 Indeed, rapid deployment of wireless telecommunications facilities, like the Proposed Facility, is an important national issue, especially given the trend of Americans eliminating traditional landline telephone service in favor of wireless communications.
Substantial Evidence Must Guide Local Process
The TCA defines the scope and parameters of the county’s overall review of AT&T’s Application.
Under the Act, the city’s review of AT&T’s applications must be based on substantial evidence.4 The “substantial evidence” requirement means that a local government’s decision must be “authorized by applicable local regulations and supported by a reasonable amount of evidence.” In other words, a local government must have specific reasons that are both consistent with the applicable regulations and supported by substantial evidence in the record to deny a permit. Indeed, a decision denying wireless siting application “is invalid” if it not supported by the locality’s own regulations.5 RF Emissions Cannot Be Considered Here
The TCA also specifically precludes local governments from considering any alleged effects of radio frequency emissions in making decisions as to the siting of wireless telecommunications facilities “to the extent such facilities comply with the FCC’s regulations concerning such emissions.”6 Here, it is beyond dispute that the Proposed Facility will operate below applicable FCC limits. In connection with AT&T’s application, a Radio Frequency Emissions Compliance Report was prepared by Waterford Consultants and was certified by a California Registered Professional Engineer. The report confirms that the Proposed Facility will operate well within (and actually far below) all applicable FCC exposure limits.
Given the compliance with the FCC standards, AT&T’s application cannot be rejected based on concerns about radio frequency emissions.
Avoiding An Unlawful Prohibition
The TCA also prohibits a local government from denying an application for a wireless facility where doing so would “prohibit or have the effect of prohibiting the provision of personal wireless services.”7 Courts have found an “effective prohibition” exists where a wireless provider demonstrates (1) a significant gap in wireless service coverage, and (2) that the proposed facility would provide the “least intrusive means,” in relation to the land use values embodied in local regulations, to provide the service 3 City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 115-16 (2005) (“Congress enacted the Telecommunications Act of 1996 (TCA), 110 Stat. 56, to promote competition and higher quality in American telecommunications services and to ‘encourage the rapid deployment of new telecommunications technologies.’ Ibid. One of the means by which it sought to accomplish these goals was reduction of the impediments imposed by local governments upon the installation of facilities for wireless communications, such as antenna towers.”).
4 47 U.S.C. § 332(c)(7)(B)(iii).
5 See, e.g., Anacortes, 572 F.3d at 993; Metro PCS, Inc., 400 F.3d at 725 (“we must take applicable state and regulations as we find them” in applying the substantial evidence requirement). 6 47 U.S.C. § 332(c)(7)(B)(iv) , which states, “[n]o State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [Federal Communications] Commission’s regulations concerning such emissions.” 7 47 U.S.C. § 332(c)(7)(B)(i)(II).
City Council, Union City
October 30, 2025
coverage necessary to fill that gap.8 Where, as here, a wireless carrier satisfies both of these requirements, state and local standards that would otherwise be sufficient to permit denial of the facility are preempted and the local government must approve the wireless facility.9 In fact, the burden shifts to the local government to prove that a less intrusive alternative exists. To meet this burden, the local government would need to show that another alternative is available that fills the significant gap in coverage, that it is technically feasible, and is less intrusive than the proposed facility.10 In addition, the FCC has ruled that an effective prohibition occurs whenever the decision of a local government materially inhibits wireless services.11 The FCC explained that the “effective prohibition analysis focuses on the service the provider wishes to provide, incorporating the capabilities and performance characteristics it wishes to employ, including facilities deployment to provide existing services more robustly, or at a better level of quality, all to offer a more robust and competitive wireless service for the benefit of the public.”12
AT&T has demonstrated it has a significant service coverage gap in the vicinity of the Proposed Facility. AT&T’s coverage maps (submitted with its application and made part of the public record) depict and describe the service coverage gap that AT&T is experiencing in this portion of the city. Specifically, AT&T needs to be able to provide reliable in-building service coverage in the gap area.13 The proposed service coverage from the Proposed Facility is depicted in the coverage maps. These coverage maps show that placing the Proposed Facility in this location will close AT&T’s significant service coverage gap.
AT&T has also demonstrated that no less intrusive locations are available and feasible to close the gap. AT&T’s Alternative Sites Analysis in the public record shows that AT&T conducted a comprehensive search of potential alternatives in the broader geographic area to find the best available and least intrusive site. This analysis presents a meaningful comparison of all candidate locations, describes the Proposed Facility, and explains why the other sites and designs are not viable. Neither 8 See e.g., Metro PCS, Inc. v. City and County of San Francisco, 400 F.3d 715, 734-35 (9th Cir. 2005), abrogated on other grounds, T-Mobile South, LLC v. City of Roswell, 135 S.Ct. 808 (2015); Sprint PCS Assets, LLC v. City of Palos Verdes Estates, 583 F.3d 716, 726 (9th Cir. 2009). 9 See T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 999 (9th Cir. 2009). 10 Id., 572 F.3d at 998-999.
11 See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Declaratory Ruling and Third Report and Order, FCC 18-133 (September 27, 2018) (“Infrastructure Order”) at ¶ 35; see also, In the Matter of California Payphone Association Petition for Preemption, Etc., Opinion and Order, FCC 97-251, 12 FCC Rcd 14191 (July 17, 1997); see also City of Portland v. United States, 969 F.3d 1020, 1034-35 (9th Cir. 2020), cert. denied, City of Portland v. United States, 141 S. Ct. 2855 (2021).
12 Infrastructure Order at n. 95.
13 Courts within the Ninth Circuit and across the country hold the in-building standard is the appropriate benchmark for finding a significant service coverage gap exists. See, e.g., MetroPCS Inc. v. City & Cnty. of San Francisco, No. 4:02-cv-03442-PJH, 2006 U.S. Dist. LEXIS 43985, at *10 (N.D. Cal. June 16, 2006) (held that large “coverage holes” that “extend to the interior of buildings,” are actionable under the Act); TMobile W. Corp. v. City of Huntington Beach, No. 2:10-cv-02835-CAS (Ex), 2012 U.S. Dist. LEXIS 148170, *11-12, *49 (C.D. Cal. Oct. 10, 2012) (held that “providing reliable in-building wireless service . . . is essential, and its absence constitutes a significant gap in coverage”; ruled T-Mobile demonstrated significant gaps in in-building coverage); L.A. SMSA Ltd. P'ship. City of L.A., No. 2:16-cv-04954-FLA, 2021 U.S. Dist. LEXIS 160046, *21-26 (C.D. Cal. Aug. 24, 2021) (gaps in in-home wireless service coverage constitute a significant coverage gaps).
City Council, Union City
October 30, 2025
AT&T nor the city has identified another viable site. As the analysis demonstrates, the Proposed Facility is not only the best available and least intrusive means to do so, it is the only way for AT&T to bring critical wireless services to the area. Approval of AT&T’s application is required to avoid an unlawful effective prohibition. The Planning Commission’s approval thus comports with federal law, and the Council should likewise approve AT&T’s application and deny the appeal.
The Appeal Does Not Support Denial
The appeal does not raise concerns to justify upending the proper approval of AT&T’s application.
Even if the City Council was to identify a code-based reason to disfavor the Proposed Facility, the city is preempted from effectively prohibiting wireless service. As a practical matter, there is no need to risk violating federal law. The Proposed Facility is well-designed, meets applicable standards, and will provide vast improvements to wireless services for customers and first responders alike. AT&T offers the following responses to the issues raised by the appeal:
Agreement with Property Owner. AT&T identified this church property as the least intrusive means to close its significant service coverage gap. The terms of the city’s approval, rather than lease terms, are the appropriate measure of AT&T’s responsibilities. For example, the city’s approval controls the permit duration, maintenance, and insurance obligations. Further, the terms of the lease are confidential.
FirstNet. The appeal calls into question the Proposed Facility’s public safety benefits. Again, the Proposed Facility will close a significant service coverage gap for the city’s residents, businesses, and visitors. Wireless connectivity is critical, especially with the vast majority of households relying on wireless telephones are their primary communications devices. In addition, the Proposed Facility will provide dedicated wireless service to first responders. First conceived by the 9/11 Commission Report as a necessary strategy to coordinate first responder communications, Congress created FirstNet as the first ever nationwide first-responder wireless network. AT&T was then awarded the contract to build out FirstNet.
The appeal confuses FirstNet with 911 calls. FirstNet is a means for first responders to communicate, not for residents to reach out to first responders. In fact, FirstNet users have priority over other users so that, in the event of an emergency, first responder communications will take precedence over other users on the same frequency. The Proposed Facility will provide new service on Band 14, which is the nationwide high-quality spectrum set aside by the U.S. government for public safety.
Deployment of FirstNet in the subject area will improve public safety by putting advanced wireless technologies into the hands of public safety agencies and first responders.
The appeal seeks verification of the improvements that will be made to FirstNet capabilities by construction of the Proposed Facility. FirstNet signals are provided over AT&T’s 4G LTE spectrum. The coverage maps that AT&T submitted with its application depict before and after coverage levels on AT&T’s 4G LTE spectrum. These maps thus help show the need to improve FirstNet here and the scope of that improvement once the Proposed Facility is on air.
Health Concerns. The appeal raises concerns about the health effects of radio frequency emissions from the Proposed Facility. Again, AT&T’s Proposed Facility will comply with the FCC’s RF emissions standards. The city is, therefore, preempted from considering these concerns.14 In fact, the city’s consultant confirmed the Proposed Facility will comply with these federal standards. 14 See 47 U.S.C. § 332(c)(7)(B)(iv).
City Council, Union City
October 30, 2025
26832799.1
Noise. The appeal contends the Proposed Facility will generate noise and asks the city to require AT&T to agree to certain noise standards. But that has already taken place. The noise study that AT&T submitted with its application, which is part of the public record for this matter, shows that the facility will comply with the city’s noise standards. Moreover, the noise study was conducted using maximum load conditions for the air conditioner and generator even though the generator is for emergency backup during power outages and exercised once per week for maintenance.
Alternative Sites Analysis. The appeal asks the city to compel AT&T to analyze alternatives. In fact, however, AT&T conducted a comprehensive alternative sites analysis, the documentation of which was submitted in connection with AT&T’s application and is part of the public record. AT&T considered 10 candidate sites – the proposed site and 9 alternatives – in this portion of the city. The other 9 alternatives were either unavailable, infeasible, or both.
The appeal does not identify an alternative, let alone one that is available, feasible, and less intrusive. Nor did AT&T or the city identify an available, feasible, and less intrusive alternative. Thus, as the Planning Commission and city’s consultant agreed, AT&T’s Proposed Facility is the least intrusive means by which AT&T can close its significant service coverage gap.
Conclusion
AT&T is working diligently to upgrade its network to provide and improve wireless services in the city. AT&T has shown that federal law strongly supports (indeed, requires) approval, and there is no substantial evidence on which the city could deny AT&T’s application. AT&T urges the City Council to approve AT&T’s application and deny the appeal.
Sincerely,
Aaron M. Shank