City Council approves telecommunication provider fee

November 11, 2016

Telecommunications service providers will have to pay the city of Santa Fe a franchise fee from now on to locate their facilities in public rights of way.

The 2 percent fee on all charges to each household or business to cover the city’s infrastructure maintenance costs likely will be passed on to consumers.

After a public hearing this week that included lively testimony from actress Ali MacGraw and several people who say they suffer from electromagnetic hypersensitivity, also known as Wi-Fi allergies, the City Council unanimously approved a proposal that re-establishes a fee provision in the city’s telecommunications ordinance. The measure includes a $100-a-day fine to any telecommunications company that fails to pay the fee.

Assistant City Attorney Marcos Martinez said the proposal approved late Wednesday night primarily addressed provisions of the ordinance that had been struck down by a federal court in 2012 after Qwest, the telecommunications corporation now doing business as CenturyLink, challenged the law.

Qwest argued that the ordinance didn’t apply equally to all communications providers and that it unconstitutionally interfered with interstate commerce, among other claims. Qwest and the city settled the case last year.

The proposal councilors passed Wednesday night also eliminated a provision requiring arbitration to resolve disputes with telecommunications providers.

“In our view, arbitration can be a costly and unsatisfactory method of resolving disputes, and overturning an arbitration decision in court is very difficult,” Martinez said.

The proposal had triggered claims by anti-Wi-Fi activist Arthur Firstenberg that it would lead to an “uncontrolled proliferation of telecommunications facilities” in public rights of way, prompting Martinez and other city officials to tackle the assertions head-on.

“Normally, I would not talk about sections of the code that are not being amended,” Martinez said at the beginning of Wednesday’s hearing. “But I have heard some misinformation on this topic, and I think it’s important to clarify that the ordinance amendments do not change the existing land-use review processes for telecommunications providers and therefore will not allow a proliferation of cell tower antennas any more than the current ordinance already does.”

Firstenberg also alleged that Councilor Peter Ives, who sponsored the proposal, had a conflict of interest because his wife, attorney Patricia Salazar Ives, has represented telecommunications companies as well as the city in telecommunications matters.

Before the start of the public hearing, Ives maintained he didn’t have a conflict and that he wouldn’t recuse himself.

“Some people … have suggested that I may benefit financially from my vote because it could result in increased business for my wife and that I should recuse myself from participating in the discussion and from voting on the bill,” he said.

“However, I have spoken to my wife, and she has stated to me that none of her telecommunications clients do business in the city of Santa Fe or to her knowledge have plans to do so,” he said. “As a result, my vote … will not result in a specific and identifiable prospect of pecuniary gain or loss to family members.”

Mayor Javier Gonzales also disclosed that members of his family own and operate a telecommunications tower and a radio tower in Santa Fe.

But “the ordinance being amended regulates the use of the public rights of way, and the family business is not a telecommunications provider under the ordinance and thus is not subject to its provision,” he said.

More than two dozen people, including several members of the Santa Fe Alliance for Public Health and Safety, spoke during the public hearing, some of whom raised health and other concerns about telecommunications towers.

The city previously had turned down a request to turn off the Wi-Fi in the council chambers, a decision that Gonzales said had been “thoughtfully considered.”

MacGraw, who lives in Tesuque, spoke about the dangers of cell towers, including that they start fires.

“For many, many years, I have heard of the serious, really serious, damages that being exposed to cell towers give us human beings and animals,” she said.

“I have to be honest and tell you I was absolutely flabbergasted when I read the proposition,” she added. “When I read that it would be possible for those of us that so cherish the way this Santa Fe is in its healthiness would be confronted with surprise appearances of up to 500 cell towers — I don’t care that they’re littler or more charmingly designed — the fact remains that this horrendous health-challenging energy, it can be coming at us at any time.”

Martinez, the assistant city attorney, said federal law prohibits the city from barring telecommunications service.

“The city cannot prevent telecommunications providers from using the public rights of way,” he said. “The only thing the city can do is manage their use and charge a reasonable fee that is competitively neutral and nondiscriminatory.”

Residents’ concerns did not fall on deaf ears, though. Ives said he plans to introduce a resolution that would examine how the city could exercise local power over aesthetics and zoning for telecommunications services in the future.

Contact Daniel J. Chacón at 505-986-3089 or dchacon@sfnewmexican.com. Follow him on Twitter @danieljchacon.