REPORT ON PROPOSED COMPREHENSIVE PLAN
FOR WIRELESS COMMUNICATION FACILITIES

December 29, 1999

James Mitchell, Esq., on behalf of Sprint Spectrum LP
Law Office of Alan B. Zublatt
Princeton Executive Campus
4301 Rte. 1, Suite 210
P.O. Box 510
Monmouth Junction, NJ 08852
and
Warren Stilwell, Esq., on behalf of Omnipoint PCS Entrepreneurs, Inc.
P.O. Box 3426
Margate, NJ 08402

Since 1981, when the Pinelands Comprehensive Management Plan (CMP) went into effect, the construction of tall structures has been discouraged throughout much of the Pinelands Area. These regulatory limitations, which incorporated a 35-foot height limit in N.J.A.C. 7:50-5.4, were intended to prevent the littering of the Pinelands skyline with structures that significantly detract from the scenic qualities which federal and state Pinelands legislation called upon the Pinelands Commission to protect. There were, of course, exceptions to this requirement: certain structures were allowed to exceed 35 feet in height; and no restrictions were placed on height within the two most development- oriented Pinelands land management areas - Regional Growth Areas and Pinelands Towns.

However, in 1994, as the Pinelands Commission was nearing the end of its second full review of the CMP, representatives of the cellular telephone industry requested that the Commission take note of the growing need for portable telephone communications and the associated need for the placement of antennas higher than 35 feet in all parts of the Pinelands Area. To accommodate what it felt was a legitimate need, the Pinelands Commission in 1995 amended N.J.A.C. 7:50-5.4 to permit local communications facilities to exceed the 35-foot height limit if a comprehensive plan for the entire Pinelands is first prepared and approved by the Pinelands Commission. The regulations recognized that: local communications systems rely on a network of facilities to receive and transmit radio signals; the location of each cell within this network has an effect on the location of other cells; and a well designed and integrated network can avoid the proliferation of towers throughout the entire Pinelands Area, and, most importantly, in its most conservation-oriented areas. Once a comprehensive plan is approved, the regulations anticipate that site specific siting decisions will be made and that individual development applications will be submitted and evaluated against a series of site specific development standards. These regulations were adopted by the Commission in June 1995 and went into effect on August 21, 1995.

The adopted regulations required providers of "the same type of service" to jointly submit a comprehensive plan, primarily to ensure that the least number of facilities is built in the Pinelands overall. The cellular industry (comprising Bell Atlantic Mobile, Comcast, and Nextel) responded by submitting a regional plan that was approved by the Commission in September, 1998. Almost immediately thereafter, representatives of the PCS industry made inquiries of the Commission regarding the procedures and components involved in an acceptable plan for their technology. The Commission staff described the process and the necessary information for a complete plan and indicated that the PCS plan would need to incorporate and expand upon the siting array presented in the approved cellular plan (i.e., the PCS plan would effectively serve to amend the cellular plan).

b. Appendices to this Report

There are several appendices to this report. A list of them follows:

• Appendix A - The PCS companies' proposed plan (hereinafter referred to as the Plan);
  
• Appendix B - The Commission's technical consultants' (Bruce Eisenstein, Ph.D., P.E., and Moshe Kam, Ph.D.) draft report (dated 11/23/99) reviewing the plan;
• Appendix C - A chart outlining the procedures used to examine the PCS plan;
• Appendix D - Hierarchical policy for siting individual wireless communications facilities, as approved by the Commission on September 11, 1998;
• Appendix E - Written comments on the Plan that were received during the public review process; Appendix F - Transcript of the public hearing held by the Commission on November 16, 1999 to accept testimony on the Plan (submitted by Sprint Spectrum, LP on December 6, 1999); and,
• Appendix G - Correspondence received from Sprint attorney Alan Zublatt dated 12/22/99 regarding "Colocation and Assignment of Development Authorizations for PCS and Cellular facilities in the Pinelands"

c. Submission of the Plan

On December 28, 1998, Sprint Spectrum LP submitted a draft comprehensive plan for Commission review. Sprint readily acknowledged that it was the sole contributor to the draft and that it therefore did not comply with the provision of N.J.A.C. 7:50-5.4(c)6 requiring joint submission by all providers of the same type of service in the Pinelands. Following several informal conversations about the plan with Sprint's attorneys, the Commission staff responded with detailed comments on the draft on March 25, 1999 and provided advice to Sprint over the following months regarding the composition of subsequent drafts and the method of complying with the joint submission requirement.

After contacting the FCC, Commission staff advised Sprint of a private company, International Transcription Service (ITS), which could provide a reliable list of companies which had a franchise to provide PCS services in New Jersey. Sprint was subsequently able to determine that there were seven such franchisees. In addition to itself, these were Omnipoint Entrepreneurs, AT&T Wireless PCS, Nextwave Power Partners, Primeco Personal Communications, Rivgam Communications, and Comcast PCS Communications. In March, the Commission sent to the six other companies a copy of Sprint's draft plan and a cover memo explaining the CMP requirement for a regional plan and urging their participation. The staff later attempted to contact all the providers by telephone. Primeco responded by saying that it did not in fact have a franchise or any intention to operate a PCS system in New Jersey. A phone call was received from a representative of Rivgam who indicated some initial interest, but the company never followed up with any further response. AT&T Wireless, Comcast PCS, and Nextwave were silent throughout. Omnipoint became an active participant and is a signatory to the current plan.

After review and discussion of several interim plan submissions, Sprint and Omnipoint submitted a comprehensive plan on October 25, 1999 entitled, Comprehensive Plan for PCS Communications Facilities in the Pinelands. This plan was reviewed by the Commission staff for conformance with N.J.A.C. 7:50-5.4 according to specific procedures, which are appended to this report as Appendix C. The plan satisfactorily responded to the Commission's request for minor additional information, as required by the CMP, which was omitted from an October 10 plan submission. The Plan includes utilization of 21 sites contained in the approved cellular plan and, as such, effectively serves to amend that plan. The CMP Policy and Implementation Committee and attending members of the public were briefed on the expected plan at the Committee's October 22, 1999 meeting.

On October 28, 1999, the industry's Plan was deemed complete for purposes of Commission review. A completeness determination in no way implies that a well documented and approvable plan has been submitted; rather, it is an acknowledgment that there is sufficient information upon which to begin the formal review process. It is also important to note that signaling information was submitted to the Commission's technical consultants to aid them in their review of the need for the proposed facilities.

A public hearing was duly advertised, noticed and held on November 16, 1999. Relevant information obtained through the public review process has contributed to the Acting Executive Director's review of the proposed Plan.

d. Summary of Plan's Facility Siting Proposals

The Plan proposes a total of 36 new PCS facilities (a facility being a location where one or more antennas are suspended), which will complement the 27 facilities that are already in operation. Of the 36 new facilities, 21 are to be located at sites previously approved in the cellular plan and 10 of these will be on existing structures. Six other PCS facilities will also be located on existing structures, but at sites where no cellular facility is proposed. The remaining nine new facilities are proposed to be developed as follows:

* 3 proposed facilities which may be located on existing structures; and

* 6 proposed facilities which are unlikely to be located on existing structures and which will likely require the construction of new tower facilities.

Additionally, the plan participants have identified one location in Pemberton Township where a facility is required for coverage, but for which there appears to be no site available which meets the standards of N.J.A.C. 7:50-5.4(c). The participants reiterate the need for this facility, but indicate that they will explore alternative means in the future which would permit its construction. They indicate that they may possibly seek a waiver of strict compliance from the Commission, a rezoning from the Township, or an amendment to the CMP which would allow for its placement.

The plan participants have indicated, and the Commission's technical consultants have confirmed, that, because of the frequency at which PCS facilities operate, a more restricted siting radius must be employed for the installation of new PCS towers than is the case for cellular towers. Consequently, at each of the six locations on the Plan's facility array map where it is likely a new tower will be required, the actual "search area" for the tower will probably be confined to an approximately 1/2 mile radius.

N.J.A.C. 7:50-5.4 contains the standards against which this Plan is to be judged. If these standards are met, the Commission must approve the plan. If the standards are not met, the Commission cannot approve the plan but may conditionally approve or disapprove it, depending on the extent and severity of the plan's deficiencies.

The Commission interprets that this Plan, as well as any future plans subject to the provisions of N.J.A.C. 7:50-5.4, will and must incorporate, amend, and expand upon, to the extent technically feasible, the facility array and all other applicable provisions in the cellular industry's comprehensive siting plan, which was approved by the Commission in September, 1998.

For purposes of review, the standards of N.J.A.C. 7:50-5.4 have been separated into ten criteria. A discussion of each and the plan's conformance to it follows. To aid in the staff's review of the plan, Bruce Eisenstein, Ph.D., P.E., and Moshe Kam, Ph.D., were retained for their expertise in communications technology. Their review is appended to this report as Appendix B and is reflected, as appropriate, in the findings which follow. Furthermore, information which was elicited through the public review process is also reflected, as appropriate, in these findings.

b. Standards

1. The plan must be agreed to and submitted by all providers of the same type of service, where feasible. N.J.A.C. 7:50-5.4(c)6. This requirement is intended to ensure that the greatest possible degree of coordinated planning occurs to minimize the number of new structures in the Pinelands Area. If fewer than all providers of the same type of service submit the plan, there must be evidence that participation and endorsement was sought from the other providers, along with a clear and reasonable explanation why full participation was not obtained. Furthermore, any plan submitted in order to comply with this requirement must be based upon any and all previous plans that have been approved by the Commission, i.e., it must incorporate the prior approved siting array and only build elsewhere as technical/propagation needs dictate. The Commission staff made the PCS providers expressly aware of this requirement, which effectively renders this Plan an amendment to the cellular plan.

   As mentioned earlier, the Commission staff made a specific effort in March and April, 1999 to contact the six licensed providers identified by ITS who had not contributed to the draft plan submitted by Sprint in December of 1998. Additionally, the staff regularly copied its PCS plan related correspondence to all six (minus Primeco after it notified the Commission it was not interested in serving New Jersey).

   On September 28, 1999, Sprint notified the Commission of its effort to involve the other providers in formation of the comprehensive plan. Sprint identified the providers of "the same kind of service" as those carriers who generate "fully duplexed voice and data service in the 1850-1990 MHz range." These include the six companies identified in Section I.c. of this report. Sprint indicated that one of the six, Omnipoint, would be a signatory to the final plan submitted to the Commission. Sprint further stated that it had forwarded copies of its December, 1998 draft plan to the other five providers and submitted copies of certified mail receipts representing at least one effort to contact each of the five between December, 1998 and February, 1999. Sprint also cited three pieces of Commission correspondence regarding development of the plan - dated March, August, and September, 1999 - which were copied to all five carriers.

   Based on the level of effort which Sprint has documented to contact all licensed PCS providers in New Jersey, the Acting Executive Director concludes that this standard has been met.

2. The plan must review alternate technologies that may become available for use in the near future. N.J.A.C. 7:50-5.4(c)6. The purpose of this standard is to identify those other technologies which should at the very least be considered as the pending plan is reviewed.

   The Plan briefly describes other technologies which may affect the PCS telephone industry and this Plan. These include cellular vision, interactive video data service and mobile satellite service. It would have been helpful for the applicants to more fully describe them and their possible implications on this Plan, particularly on the number and location of facilities, but that is not required by the standard. These technologies appear at present to be in a relatively nascent phase and, while two of them may eventually employ transmission towers, their long-term impact on the Plan appears difficult to assess.

   The Acting Executive Director concludes that this standard has been met.

3. The plan must show the approximate location of all proposed facilities. N.J.A.C. 7:50-5.4(c)6. In order to evaluate how well the plan meets other standards (such as those presented in subsections 5, 6 and 7 below), which are intended to minimize the number of new structures (e.g., towers) in the Pinelands Area, it is essential that there be a clear and unambiguous identification of all proposed facilities, including those which will utilize existing structures and those which will require new ones.

   The Plan graphically presents the approximate location of all facilities on a map titled, "PCS Sites in the Pinelands," and provides geographic coordinates for each of them. The Plan also describes each proposed facility in narrative form (indicating those already existing; those previously authorized in the cellular plan; those proposed facilities that will/may/may not be located on an existing structure; and the one facility necessary to resolve a FCC border issue), the municipality in which it is to be located, and whether it will be located within what the companies refer to as "unrestricted," "height restricted," or "height and least number of structures restricted" areas. Latitude/longitude information for each site is also provided and a « mile "general" siting radius is proposed.

   Some members of the public were concerned with a statement in the plan that facility #62 was "in the area of the Pine Plains." Plotting the coordinates of this site shows it to be near, but not in, the Pine Plains. Facility #38 is listed in the Plan as being in the unrestricted area; however, it is actually in the height and least number restricted area.

   It should be noted that the plan participants, Sprint and Omnipoint, have a number of applications for PCS facilities currently pending before the Commission. While most of these are either reflected in the Plan or appear otherwise permittable (presuming there are no environmental or other constraints), following are proposed facilities which do not conform to the Plan. They are hereby considered to be withdrawn from further consideration by the Commission unless the applicant expressly requests in writing that one or more specific applications remain active. Proceeding with any new tower in the height restricted areas would require an amendment to this Plan.

   81-0619.19 - Sprint
   82-3361.02 - Sprint
   83-4188.02 - Sprint
   84-1078.05 - Sprint
   98-0519.01 - Sprint
   98-0561.01 - Sprint
   99-0195.01 - Sprint
   99-0242.01 - Sprint
   
   The Acting Executive Director concludes that this standard has been met.

4. The plan must include five and ten year horizons. N.J.A.C. 7:50-5.4(c)6. This standard is important insofar as the Commission, local governments and the public can rely on the plan as a blueprint of industry needs beyond the immediate future. This is not to imply that the plan cannot be amended if needs change - the CMP expressly recognizes this - but the network of facilities should be planned to meet anticipated needs over a ten year period.

   The Plan's narrative description of each proposed facility identifies whether it is likely to be constructed as soon as possible or within five years. The Plan anticipates that 28 of the 36 proposed facilities are needed as soon as possible and the remaining eight are to be built within the next five years. It is important to note, however, that these are projections which might change over time.

   While supplying a five year horizon that addresses the entire Pinelands, the plan participants do not believe a meaningful ten year horizon is possible at this time. As such, they have not identified a need in the five to ten year period. On this issue Assistant Director John Stokes relayed a staff concern, in a 9/1/99 memo to the Commission, that the plan may not be entirely comprehensive because it does not provide coverage over 100% of the Pinelands. This echoed a similar sentiment which was noted in the Commission consultant's report. As Mr. Stokes indicated, "The vast majority piggyback on the cellular plan. Although additional facilities might be proposed in the distant future to expand coverage in the Pinelands, Sprint believes they are highly speculative at this time. Moreover, many of those facilities are likely to be located in areas where current CMP siting requirements effectively prohibit their placement. It is our belief that proceeding with a plan that realistically portrays the company's plans is best at this time."

   Thus, the Plan provides an accurate accounting of all the facilities which the plan participants identify as needed for the foreseeable future. Beyond the time frame identified in the Plan, they do not feel that any meaningful projections regarding facility needs can be made. With the exception of the Pemberton site noted above (see Section I.d. on p.4), the plan participants maintain that all necessary facilities which are technically feasible to identify at this time have been identified and mapped in the Plan. They realize that any unanticipated future facilities in height restricted areas that will not be on permitted existing structures will require that an amendment to the Plan be jointly submitted by all the providers and approved by the Commission.

   One public comment was received to the effect that the Pemberton site, noted as needed but not included in the Plan (as it could not be sited in a manner consistent with current CMP standards), must be included if the plan is to be truly "comprehensive," as required by N.J.A.C. 7:50-5.4(c)6. However, its inclusion would render the Plan as a whole inconsistent with the siting requirements of N.J.A.C. 7:50-5.4(c)4.vi. and would therefore prevent the Commission from approving the Plan. The Plan could only be approved if the site was not included in it.

   Since the Plan identifies all proposed facilities that are consistent with the current standards of the CMP and are necessary for adequate service within a reasonable and reliable time frame, the Acting Executive Director concludes that this standard has been met.

5. The plan must demonstrate that every facility proposed in the Pinelands Area is needed to provide adequate service. N.J.A.C. 7:50-5.4(c)1. There are two important elements to this standard - the first is the purpose for the plan, which is to provide "adequate" service, and the second is that every proposed facility must be judged against that test.

   a. Adequate Service

   The term "adequate service" is used in N.J.A.C. 7:50-5.4(c) three times. The simple reason was to leave no doubt that the goal for wireless service in the Pinelands Area was to provide "adequate" service, not necessarily to offer optimal service to all current and potential customers. Specifically at N.J.A.C. 7:50-5.4(c)1, adequate service is described as that which "serves the local communication needs of the Pinelands, including those related to public health and safety." It was recognized at the outset that this distinction could play an important role in determining both the number and location of wireless facilities in the Pinelands Area because the height and proximity of the antennas exert a tremendous influence on the quality of service.

   To judge, as is required by this CMP standard, whether every facility proposed in the Pinelands is needed, an objective definition of adequate service is necessary. Without it, one cannot impartially evaluate need and justify a decision to include in, or exclude from, a plan a proposed facility.

   The applicants address this matter in their Plan, in a manner essentially identical to that in the cellular plan. They describe what are called "three widely recognized parameters" that are used in the industry to define service levels. These three parameters are (1) signal to interference ratio at audio, (2) dropped call rate and (3) blocked call rate. In presenting this information, the applicants describe, but do not quantify, the parameters and note their belief that the technical need for service is dictated by the federal Telecommunications Act of 1996.

   Although this lack of quantification does not, itself, yield an objective measure for defining service levels, the Acting Executive Director does not consider this to be a fatal flaw in the Plan for two reasons. First, the Commission's technical consultants quantified service levels (see Appendix B) and reviewed the proposed facilities on that basis. Second, the companies expressly acknowledge in their Plan that they must again demonstrate need if amendments to the Plan are proposed in the future.

   b. Need for every facility in the Pinelands Area

   The Plan indicates that all 36 proposed facilities are necessary for coverage. Need is demonstrated primarily in two ways: by documentation of ANET radiofrequency plots, which show where signal strength drops; and by expert determination of the legitimacy of industry assertions, as provided by the Commission's consultants. The consultants and the Commission staff also took account of the industry's existing array of 27 facilities in the Pinelands in order to identify areas with likely coverage gaps. For instance, given the limited broadcast range of PCS phones, the approximately nine mile section of Rte. 72 where there are no facilities appeared a fairly obvious gap.

   The Commission's technical consultants evaluated the need for every proposed facility and, when a question arose, reviewed detailed technical information on the equipment planned for use in the Pinelands and on signal levels expected from the planned sites. In some cases, the Commission's consultants measured existing signal levels using their own equipment. The Commission's consultants have concluded that each of the proposed facilities is justified on the basis of service levels as they have quantified them. In response to various questions about this data, it was offered for public review both before and after the public hearing. Some members of the public (after examining some of the ANET plots) continue to question whether need has indeed been demonstrated. However, in no case did any member of the public provide any technical evidence that a specific facility was not necessary. Without a demonstration to the contrary, the Commission staff relied upon its impartial consulting telecommunications experts - whose prior experience and opinions regarding propagation plots as they relate to adequate service and the limitations of the current technology carried weight with the staff - and the prima facie evidence of coverage gaps in the current array.

   The need for three facilities was specifically questioned during the public hearing (two new towers - #64 in Manchester Township and #62 in Woodland Township; and one proposed for collocation on a proposed Bell Atlantic tower in Evesham Township - #28). An additional proposed facility in the City of Estell Manor (#40) was questioned in a written comment received during the public comment period. All of these facilities were again reviewed by the Commission's technical consultants and found to be needed based on the following:

   Facility #28: an examination of the "PCS Sites in the Pinelands" map included in the Plan shows that this facility fills a nine mile gap between Facilities #26 and #2, far beyond the range of either. The consultants' calculations support the need for #28.

   Facility #40: A suggestion was made that use of an existing tower in the Pinelands Village of Dorothy (Weymouth Township) might eliminate the need for development of a new tower in Estell Manor along Route 50. However, as the Pinelands Village of Dorothy is roughly four miles from the center of the area in which service is needed, use of the existing facility would not provide the necessary coverage.

   Facility #62: an examination of the map included in the Plan shows that this facility fills a ten mile gap between Facilities #35 and #22, again far beyond the range of the latter two. ANET plots both with and without #62 confirmed a coverage gap in its absence.

   Facility #64: an examination of the map shows that this site serves Ocean County up to its border with Burlington while Facility #38 serves Burlington County up to its border with Ocean County. This is a special problem arising from the provider having different franchises with differing frequencies in Burlington and Ocean Counties. As a result, the coverage in one county is not permitted to overlap into the other county. It is hoped and believed by the industry that this tower will ultimately prove to be unnecessary through an agreement among the affected providers for one to use a frequency controlled by the other. However, until this issue has been resolved, the facility must be reflected in the Plan. Ultimately, construction of this facility will require application to the Commission. The facility can only be approved at that time if the applicant demonstrates its inability to gain permission to use the frequency and there is no other solution that will permit adequate coverage.

   Since the Commission's consultants have determined that all of the facilities proposed in the Pinelands are needed to provide adequate service, the Acting Executive Director concludes that this standard has been met.

6. The plan must demonstrate that the facilities to be located in the Preservation Area District, the Forest Area, the Special Agricultural Production Area and 17 specific Pinelands Villages are the least number necessary to provide adequate service, taking into consideration the location of facilities outside the Pinelands. N.J.A.C. 7:50-5.4(c)6. One of the key CMP provisions, the purpose of this standard is to very closely scrutinize new facilities proposed in these conservation-oriented land management areas of the Pinelands and to do so considering the location of facilities outside of these areas. Since the PCS system represents a network of facilities, each of which affects the location of other facilities in the system, the location of facilities outside these conservation-oriented land management areas is important in evaluating the need for new facilities within the areas.

   The Plan refers to these conservation oriented management areas as the "height and least number of structures restricted" area. The Commission staff and the Commission's technical consultants not only reviewed the need generally for the proposed facilities within these areas, they also evaluated the possibility of relocating those that are needed to other, less sensitive parts of the Pinelands. In the end, the proposed network of 36 new facilities within the Pinelands includes 20 in these most conservation oriented land management areas. Of the 20, seven represent antennas which will definitely be located on existing structures; three others are facilities which may be located on existing structures; and four are at proposed locations approved in the cellular plan. This leaves six proposed PCS facilities which will be in the most conservation-oriented areas and are likely to require the construction of new towers. The Commission staff and the Commission's consultants are now convinced that, when taking the need for each facility into account, there is effectively no opportunity for eliminating any of the remaining facilities proposed in the most conservation oriented areas of the Pinelands. However, a special case arises which respect to Facility #40 in Estell Manor City:

   Facility 40: this facility is located near the Pinelands Area boundary in the Forest Area and a question may be asked as to why it could not be moved outside the Pinelands Area. The area immediately beyond the Pinelands Area boundary is located within the Pinelands National Reserve, also in a Forest Area. It consists primarily of state-owned wetlands and the physical development of a tower is probably not feasible. The visual impacts from either side of the road will be similar, except that the Great Egg Harbor River (a CMP designated scenic corridor as well as a federally designated Wild and Scenic River) is to the east and placement of the facility in the Pinelands National Reserve, outside the state-designated Pinelands Area, would be more likely to affect it. Finally, the City of Estell Manor is one of three municipalities that have requested and obtained Commission certification of their zoning plans within the entire Pinelands National Reserve (PNR). Thus, moving the facility to a site in the Forest Area in the PNR and outside the Pinelands Area is not recommended.

   The Acting Executive Director concludes that this standard has been met.

7. The plan must demonstrate that the antenna utilizes an existing communications or other structure, to the extent practicable. N.J.A.C. 7:50-5.4(c)3. One of the key CMP provisions, this standard is intended to ensure that the fewest possible number of new towers are constructed throughout the Pinelands Area.

   The Plan relies in part upon the inventory information compiled by the cellular industry in 1998. The cellular industry assembled and analyzed new information on existing structures (including inventories from the three electric utility companies which service the Pinelands and the Federal Aviation Administration (FAA)), described the results of visual surveys of potential sites in the most conservation oriented parts of the Pinelands, and cited the results of the Pinelands Commission staff visual surveys of potential sites in the remainder of the Pinelands. Additional mapping and windshield surveys were completed for this plan. The Plan also followed the cellular providers' approach to organizing the facilities into one of three categories: (1) those which will be located on existing structures, (2) those which may be located on existing structures (including proposed cell towers) and (3) those which are unlikely to be located on existing structures.

   Of the 15 PCS facilities which are not already in existence or proposed to be at previously approved locations in the cellular plan, only six are unlikely to be located on existing structures (i.e., they will likely require the construction of a new tower). The Commission staff reviewed all six sites carefully, site inspecting and examining aerial photos as appropriate, and concluded that there were no available existing structures to accommodate the facilities.

   Two cautionary notes are in order. First, it is possible that some of the existing structures which the companies indicate may be suitable for PCS facilities may be ultimately found to be unsuitable due to technical or other considerations. Second, it is possible that disputes may periodically arise when a PCS provider argues that a particular structure, although suitable from an availability and construction standpoint, is not situated so as to service its need. However, it is unrealistic to expect that detailed technical analyses of all potentially usable structures be completed as part of this Plan for facilities which the companies may not attempt to build for several years and that lease agreements for them be executed prior to the Commission's approval of this Plan, particularly when one considers that the CMP regulations themselves contemplate that individual development applications must still be evaluated against this standard. Therefore, the Acting Executive Director concludes that this standard, insofar as it applies to this Plan, has been met.

8. The plan must demonstrate or note the need to demonstrate when the actual siting of facilities is proposed that, if a new supporting structure (tower) with antenna is to be constructed, it can probably be sited according to the six criteria in N.J.A.C. 7:50-5.4(c)4. These criteria deal with satisfying technical operating requirements; minimizing visual impacts from public areas, wild and scenic rivers and special scenic corridors, the Pine Plains, the Forked River Mountains and residential areas; and, if proposed in the Preservation Area District, Forest Area, Special Agricultural Area, or Rural Development Area, locating the facility in non-residential zones, non-conservation public lands, mines, first aid or fire stations, and landfills. It is the Acting Executive Director's opinion that, while it is acceptable for a plan to note the need to demonstrate adherence to these siting criteria when individual facilities are proposed, there must also be a reasonable expectation when the plan is approved that the proposed facilities can, in fact, be sited. Without this expectation, the plan is meaningless because there can be no confidence that the proposed facility network is realistic. This does not require the same type of comprehensive analysis required at the time a specific development application is filed; rather, it is a planning review to ensure that there is a reasonable probability that qualifying sites exist.

   Again, this standard applies most directly to the six facilities which are unlikely to be located on existing structures, all of which will be built in the most conservation oriented areas of the Pinelands. These comprise Facilities 14, 15, 20, 40, 62, and 64. The Commission staff, after carefully reviewing all six sites, has concluded that these facilities can be sited in conformance with the criteria of N.J.A.C. 7:50-5.4(c)4.

   At the public hearing, however, continued concern was voiced about the location of a proposed Bell Atlantic Mobile facility in Evesham Township which was approved in the cellular plan and is proposed for use by Sprint in the PCS Plan. It is the Acting Executive Director's understanding that Bell Atlantic has at least temporarily postponed its pursuit of this facility. Therefore, the need for Sprint to co-locate on the facility now means that the siting is again in immediate contention:

   Facility #28 (authorized as a new tower in the approved cellular plan): Evesham Township officials remain opposed to the siting of a facility at the specific latitude and longitude reflected in the cellular plan for a Bell Atlantic facility, on which this Sprint facility will co-locate. However, both Bell Atlantic and Sprint have adequately demonstrated the need for the facility and it is possible that existing structures nearby could be used. There may also be some flexibility in the search area. This latter possibility has been confirmed with Sprint which intends to work with the Township to solve the issue.

   Siting thus seems possible for all facilities. However, it should be pointed out that four proposed facilities were noted in the Plan to be in or near scenic resources: #14 - Great Egg Harbor River (GEHR); #15 - Great Egg Harbor River; #40 - Great Egg Harbor River (Jackson Creek tributary); and #62 in the vicinity of the Pine Plains. A discussion of each follows:

   Facility #14: is to be located along Rte. 322 approximately 1000 feet from the GEHR, thereby falling within the federal 1/4 mile (1320 feet) scenic corridor. In part because of the proximity of the river, but more to reduce new towers and find permittable sites, the location of this facility was the subject of intense scrutiny by both Commission staff and the Commission's consultant. Several alternatives were examined but none were found to be feasible without increasing the number of towers or requiring the use of sites which are not permitted under current CMP standards. All sites permitted by the CMP near this location along Rt. 322 (a Forest Area commercial zone) fall within the federal 1320 foot (1/4 mile) corridor. Even if permittable sites outside the Forest Commercial zone could be found, for at least 10 miles along this portion of Rt 322, the GEHR parallels the highway about 1/4 mile away (thus all sites would conceivably have equal impact to the GEHR). The National Park Service reviewed this information, recognized the lack of alternatives, and asked to be kept informed about the progress of this facility. It should also be noted that Hamilton Township has approved the site. Given all these factors, it appears that the facility has been sited to avoid a visual impact as viewed from the GEHR to the maximum extent practicable, as required by N.J.A.C. 7:50-5.4(c)4.iii. The CMP's more specific restriction on visual impacts within 1000' of the center line of the GEHR (N.J.A.C. 7:50-6.105(a)) will be addressed at the time a development application is filed (when the exact distance of the facility from the river will be known).

   Facility #15: is to be located along Rte. 322 beyond both the CMP and federal scenic corridors; thus, few siting problems are anticipated. This issue will of course be re-examined at the time a development application is submitted to the Commission.

   Facility #40: is to be located along Rte. 50 beyond both the CMP and federal scenic corridors, thus, few siting problems are anticipated. Again this issue will be re-examined at the time a development application is submitted to the Commission.

   Facility #62: as was noted previously, a clear need has been demonstrated in the Plan for a facility along Route 72 to the west of the Pine Plains (note: the comments received from the Pinelands Preservation Alliance are apparently based on a brief and ambiguous siting description in the Plan; according to the coordinates specified in the plan, the facility is not located in the Pine Plains, but just to the west). There appears to be only one site in the vicinity which complies with the siting standards of the CMP, but fortunately it is set back from the road approximately 1000 feet and to the west of the Plains area. This will greatly help to minimize visual impacts. Equally helpful, the possible site falls within a shallow valley (at a an elevation of 130 feet) while the adjacent plains to the east are rising to a level of 200 feet. Thus, #62 to the west will be less visible than might otherwise have been expected. From the standpoint of the Pine Plains, the demonstrated need for a facility, the lack of other available sites, and the fact that visual impacts will accrue anywhere in the vicinity suggest that the one site identified as feasible may meet the requirement that the site avoids, to the maximum extent practicable, visual impacts from the Pine Plains. It will be necessary to demonstrate as part of the development application that there are no appropriate sites further to the west that provide adequate service with a lesser visual impact.

   Some members of the public remain opposed to any tower that affects or could affect such scenic resources, even if the need were conclusively demonstrated to their satisfaction. Their concern, thus, is not with the PCS plan per se, but with the regulations that clearly permit such siting in these cases. However, the PCS plan must be reviewed by the regulations as written and adopted.

   Since a reasonable expectation now exists that the proposed facilities can be sited in accordance with CMP standards, the Acting Executive Director finds that this standard has been met.

9. The plan must demonstrate or note the need to demonstrate when the actual siting of facilities is proposed that supporting structures (towers) are designed to accommodate the needs of any other local communications provider which has identified a need to locate a facility within an overlapping service area. N.J.A.C. 7:50-5.4(c)2. A closely related CMP standard also requires that the plan must demonstrate or note the need to demonstrate when the actual siting of facilities is proposed that the supporting structure, if initially constructed at a height less than 200 feet, can be increased to 200 feet to accommodate other local communications facilities in the future. N.J.A.C. 7:50-5.4(c)5. Another closely related standard in N.J.A.C. 7:50-5.4(c)6. requires that the plan must provide for joint construction and use of the supporting structures (towers). For purposes of this report, these three standards, which are intended to facilitate co-location of cellular and other types of local communications facilities, will be reviewed together.

   The Plan addresses these "co-location" requirements in several ways. First, it identifies joint use of proposed facilities by the two companies that are parties to this Plan. Second, it commits the companies to design and construct all new structures such that they can be increased in height to 200 feet if necessary to accommodate other communications providers. And third, it includes a policy describing how co-location arrangements will be handled for all licensed wireless providers in the Pinelands.

   Even though both of the parties to this Plan must work from their existing network design, there has been a concerted effort to propose facilities in locations where more than one company can utilize them. Twenty-one of the 36 new facilities in the PCS plan will be at locations previously identified in the cellular plan. Of the six facilities which the companies believe will require new towers, three will be shared by both. Ten of the 23 facilities which will or may utilize existing structures will be shared. To ensure that these facility sharing opportunities are not adversely affected by virtue of inappropriate site selection, the Commission's staff will ensure that each Plan participant, of both this plan and the earlier approved cellular siting plan, that is shown as a co-locator agrees with the site selected and proposed in a formal development application.

   The companies have also made a serious attempt to affirmatively address co-location issues affecting other wireless providers. The co-location policy included in the Plan duplicates that in the approved cellular plan. The Plan sets forth a five-part approach, addressing equal access, market value pricing, design of the towers, access and utilities, and the procedures for making co-location arrangements. The Commission's technical consultants reviewed the policy as presented in this plan and conclude that it will provide an effective framework to facilitate co-location, thereby reducing the need for additional tower construction in the Pinelands to satisfy other providers. However, the consultants also stress that this is a policy; it is not intended to describe detailed arrangements which are appropriate to include in specific contracts and agreements between wireless companies. Moreover, the Acting Executive Director notes several CMP related provisions and technical limitations that affect co-location opportunities:

   a. The co-location policy does not allow companies who are not parties to this Plan or the earlier cellular plan to construct new towers in the restricted areas of the Pinelands unless they are authorized to act as the agent of the appropriate wireless service company or have incorporated the site into their own approved local communications facilities plan.

   b. At sites identified in either the earlier cellular plan or this one where co-location is proposed, any of the plan participants in the two plans can take the lead (presuming the needs of all the co-locators are served). In other words, being designated as the "lead" participant in either of the plans does not guarantee to a company the exclusive rights to build a tower according to its own schedule (although, if in fact a "lead" is making progress, the co-locators have indicated they are willing to defer to that provider).

   c. As the search radiuses of the PCS participants are much smaller than those of the cellular plan participants, the latter will have to site fairly close to their approximate locations or the new structures might not technically meet PCS needs.

   d. As this plan is essentially an amendment of the earlier cellular plan and proposes to use many of the yet-to-be-built cellular structures, access by all five of the two plans' participants to each structure is required. A site will only be approved if it meets all needs of each provider identified in either plan as utilizing that site unless it is demonstrated that a single site is not feasible. To ensure that this position is understood, it was discussed at a recent meeting with the five signatories to one or other of the two plans. As a result of the meeting, there is an agreement (Appendix G) among all five to site new facilities in accordance with the technical requirements of each carrier proposing to utilize a site. Development of a joint site will be done in accordance with Appendix G.

   The above provisions are clearly necessary for the plans to meet the letter and intent of the CMP regarding co-location (as well as address several comments from concerned citizens and the cellular industry).

   Undoubtedly, the co-location policy will not resolve all potential issues or disagreements between wireless companies. Indeed, it would be naive to think there will not be periodic disputes about the meaning of one of the policies or about a company's actions in honoring the policy. In fact, there may be occasions where the Commission gets drawn into a dispute because the outcome could determine if an additional tower is or is not permitted in the Pinelands. In those instances, the Commission's decision on allowing or not allowing a new tower will be based, in large part, on whether joint use of the existing structure is feasible.

   Co-location for providers outside of these plans is illustrated by a public comment made by a 3rd PCS provider who, while choosing not to participate in this plan, wanted to be listed as a potential co-locator and be notified of opportunities. The Commission will require notification to all plan participants in either the PCS or the cellular plan to ensure that joint use sites are appropriately planned. The Commission has no obligation to notify non- participants of such siting opportunities. The co-location policy requires that non-plan participants be accommodated at new sites, provided that the needs of the plan participants have been met. The non-plan participants should contact the "leads" for any new structure being built to register their desire to co-locate directly. In accordance with the provisions of N.J.A.C. 7:50-5.4(c)6.v., non-participants also have the right to seek an amendment to an approved plan to accommodate their needs.

   The co-location policy proposed by the companies represents a workable framework to facilitate joint use of communication towers. Therefore, the Acting Executive Director concludes that these standards have been met.

10. If it reduces the number of facilities to be developed, shared service shall be part of the plan unless precluded by federal law. N.J.A.C. 7:50-5.4(c)6. This standard was intended to encourage companies to consider single server coverage.

    The PCS providers have stated their belief to Commission staff that federal regulations are intended to create competition among the providers and, therefore, do not, and should not, provide for the sharing of service.

    At a meeting held in 1997, FCC staff verbally indicated to Commission staff that shared service may be inconsistent with FCC rules but that a petition could be made for such service on an individual site if it would make a difference in the total number of towers. A review of the Plan indicates that shared service would seem to make no difference in the number of proposed new towers, only in the number of antennas. It may make a difference in the future if a tower cannot accommodate any additional antennas. Thus, it is possible that this issue may be of concern to the Commission in the future, particularly as other providers seek to locate on the same structures. Although shared service may become an issue in the future, the Acting Executive Director concludes that this standard has been met.

A public hearing on the proposed Plan was duly advertised, noticed, and held on Tuesday, November 16, 1999, beginning at 7:00 p.m., at the Teleconference Center at Burlington County College in Pemberton Township, New Jersey. It was attended by approximately 18 people. Following is a summary of testimony aired at the hearing. Sprint produced a transcript of the proceedings which was submitted to the Commission on December 6, 1999. The transcript is appended to this report as Appendix F.

Acting Executive Director William Harrison called the hearing to order at 7:00PM. Messrs. John Stokes and Larry Liggett of the Commission's staff were present, as was Dr. Moshe Kam, one of the Commission's technical consultants. After a brief, initial explanation of the major points of the Plan by Mr. Liggett, Mr. Harrison invited the public to comment on the Plan.

Mr. Lee Rosenson, representing the Pinelands Preservation Alliance and the New Jersey Audubon Society, spoke against approval of the Plan and cited several specific concerns. For one, Mr. Rosenson objected to the brief amount of time afforded for public comment and to the timing of the release of the technical data supporting the need for the proposed facilities. He felt the Commission was not allowing the public to review the staff analysis or the technical data. He stated his belief that there was no scientific basis for the conclusions in the Plan and requested that the period for public comment on the Plan be extended for four weeks after release of the technical report so that the public would have enough time to review and analyze it properly.

Mr. Rosenson further stated that the Plan does not demonstrate compliance with the CMP with regard to the need for each proposed facility, the requirement that the least number be employed in certain areas of the Pinelands, and the requirement that existing facilities and structures be used to the extent possible. Specifically, he indicated that there was no demonstration in the Plan that all the proposed towers were necessary to provide the desired level of service.

Mr. Rosenson also expressed other concerns. He objected to the placement of a tower in the West Plains because of its impact on scenic values; stated that there was no evidence that all the licensed PCS providers in New Jersey were involved in formation of the Plan; and indicated that the statement in the Plan affirming the need for an additional tower in Pemberton Township, but not including it in the proposed array, was a violation of the CMP requirements.

Ms. Theresa Lettman was the next speaker. She objected to the proposal in the Plan to site additional towers in Manchester Township, given the number of existing ones already there. Larry Liggett of the Commission staff responded that one of the towers was needed to fill an identified service gap and conform to an FCC requirement regarding overlapping service areas. Dr. Moshe Kam later affirmed that a service gap existed in the area. He said that efforts to move the proposed tower to the east were unsuccessful because of the continuing coverage problem.

Mr. Albert Webber of Tabernacle Township concurred with Mr. Rosenson that the public comment period was too short. He also inquired as to why PCS tower #19 could employ an existing structure, but a proposed cellular tower nearby could not. Dr. Kam responded that there were often subtle differences between the technical needs of PCS and cellular providers and that this accounted in many cases for multiple facilities in relative proximity.

Mr. Jack Salemi asked whether the five-mile search radius employed for cellular site selection would also be used for PCS facilities. Another speaker raised essentially the same issue. Dr. Kam answered that, because of the different frequencies employed and consequent technical limitations, the search area for PCS facilities would perforce be more restricted - usually about 1/2 mile.

In responding to other technical/operational questions and some concerns about specific facility locations that were brought up by various members of the public, the Commission staff and Dr. Kam stated that PCS providers who were not signatories to the Plan would have to propose amendments to it if they wished to build at other locations; that Bell Atlantic had deferred plans for a cellular tower at one site in Evesham; that no amendments to the CMP regarding wireless communication facilities were imminent; that towers which go out of service were required to be removed; and that newer emerging technologies were generally not viable as yet because they lack the capacity to handle the volume of calls that cellular/PCS facilities can.

Messrs. Alan Zublatt and Warren Stilwell, attorneys for Sprint and Omnipoint respectively, expressed their support for Commission approval of the Plan. They both indicated their clients' willingness to work with municipal officials to find suitable facility locations and reaffirmed their commitment to exploiting all collocation opportunities that prove feasible.

The public hearing was adjourned at 8:20 p.m.

A total of 77 written comments was received from the public via mail, email and fax prior to the closing date for public comment, which was extended to December 17, 1999. The overwhelming majority of these commenters expressed opposition to expanding the number of communications towers in the Pinelands. Several public agencies indicated concern with aspects of the proposed array rather than outright opposition to it. The National Park Service (NPS) was concerned that mitigation of visual impacts in scenic river corridors would be difficult to attain and also questioned whether the need for each facility has been adequately demonstrated. The US Fish and Wildlife Service identified nine proposed facility locations that are within five miles of the location of various threatened and endangered flora and fauna. Fish and Wildlife also recommended that, in cases where there is no alternative to a new tower, the tower be designed in a manner to minimize impacts upon migratory birds. Both Fish and Wildlife and the National Park Service requested that NPS be kept abreast of applications for towers in the vicinity of designated wild and scenic rivers. Among those opposed to the expansion of PCS facilities, many challenged the need for more towers and virtually all expressed a concern over the impact of towers on the natural beauty of the Pinelands. A number of commenters objected in particular to any intrusion upon the Pine Plains. Several questioned recent decisions of the Commission and called for more stringent enforcement of the CMP.

The one comment in favor of the Plan cited enhanced public safety that wireless phones allow.

All of these oral and written comments were considered in the Commission staff's analysis of the pending Plan to the extent they were pertinent to CMP standards. However, some issues are beyond the scope of the Commission's regulations while others, such as specific tower concerns, are appropriate considerations for municipalities and the Pinelands Commission to take into account when individual facilities are proposed for construction.

Several general public comments warrant response. These include: length of the public comment period, access to Commission staff reports (including this report) before the public hearing, and the basis/demonstration of the Plan's compliance with the CMP.

• The Commission's CMP Policy and Implementation Committee was briefed on the details of the Plan on October 22, 1999 with members of the public in attendance. It was noted at that meeting that the Plan was likely to be deemed complete the following Monday and that a hearing would be scheduled for mid-November. These events occurred as anticipated. While the Commission's public notice procedures and the subsequent period devoted to submission of public comment were consistent with regulatory requirements, a number of citizens requested that the record remain open for a more extended period due to the complexity of the issues at hand.

  The industry asked the Commission to act on the Plan as expeditiously as possible because of its perceived competitive disadvantage with the providers who participated in the approved cellular plan and because of the fact that the draft Plan had undergone extensive revisions over a ten month period. Despite this, the Acting Executive Director settled on a one month extension of the public review period, until December 17, 1999, in order to ensure that all relevant testimony is considered.

• Since the CMP became effective on January 14,1981, the Commission has followed a format of obtaining public input before any staff recommendations on municipal ordinances or federal/regional plans are submitted to the Commission. Both for this Plan and for the preceding cellular plan, members of the public have expressed a preference to obtain Commission staff recommendations prior to the public hearing and seem particularly interested in being able to review the findings of the Commission's technical consultants at that time (note: these findings were presented orally at the public hearing). However, the Commission's internal review process benefits from the consideration of public comments prior to the formation of any recommendations. Furthermore, it would not seem appropriate to distribute a staff opinion to the general public before it is presented to the Commission itself. Regarding release of the consultants' report, while Commission staff continues to view it as an integral component of the Acting Executive Director's report, drafts of the consultants' report (completed after the public hearing) have been made available to interested public to ensure the greatest degree of openness possible.
• The Plan adequately demonstrates that it meets the standards of the CMP. This demonstration is supported by extensive supplementary documentation assembled by the industry's and the Commission's technical radiofrequency experts; by the experience and familiarity with relevant issues that the Commission staff gained in its review of the earlier cellular plan; by the time spent by the Commission staff and its consultants field checking site conditions and propagation levels; by the numerous staff reviews of aerials and parcel maps and the mapping exercises undertaken on earlier drafts of the plan; and by this Acting Executive Director's report.

  In some cases, the demonstration serves to prove a negative, e.g., the lack of suitable structures nearby. In such instances, the staff researched each site for a proposed new structure before the plan was deemed complete and found none (this procedure will be repeated as applications are submitted). To assert that the staff and its consultants have not done this for this plan (and the cell plan as well) is incorrect.

  Such demonstrations may not be entirely satisfying or obvious to all of the concerned public. However, given the nature of the material and the complex technical and mapping analyses that were undertaken, this demonstration must of necessity be process oriented rather than simply a paper product. In this sense, it is identical to the cellular siting plan. The process is described in the Plan and in this report.

• The concern of the US Fish and Wildlife Service over possible impacts of tower construction upon threatened and endangered species is shared by the Commission. However, as is regularly the case, this is an issue that will be addressed at the time individual development applications are submitted. Fish and Wildlife also recommended that multiple transmitters be affixed to each tower, that towers be less than 200 feet tall, and that lights and guy wires be avoided. The CMP standards already require co-location to the extent possible and a maximum tower height of 200 feet. While the regulations do not specifically address lighting or guy wires, the provision in NJAC 7:50-5.4(c)5. requiring expandability to 200 feet encourages construction of lattice towers, which do not require guy wires.
• The contention of the Pinelands Preservation Alliance that the 11/23/99 draft technical consultants' report (Appendix B) does not include the data in support of its determinations is correct. However, it is similar in this regard to the report which the same consultants submitted, and the Commission accepted, for the cellular plan. The intent of the report is to summarize the results of an intensive review of the Plan by qualified experts in the field. From the outset the report was conceived and executed as a document which would provide a reliable professional opinion regarding the propriety of the proposed facility array. The Commission was seeking to acquire expertise in wireless telecommunications technology by soliciting the unbiased conclusions of those who have extensive knowledge and experience in the field.

  PPA's other specific comments on the technical report, expressed in both oral and written comments, are either not valid or not germane. For instance, while PPA maintains that the report "does not discuss or seek to justify the signal thresholds which the applicants use on the ANET charts," the consultants state on pp. 2-3 that they obtained data on the "output of computer models and design algorithms for microwave radiation and mobile telephony design" (paragraph #4) and "conducted limited independent experiments aimed to establish and maintain PCS communications from various locations within the Pinelands. These experiments were conducted in order to assess the realism of theoretical calculations made by the providers, and in order to establish a base line for existing quality of service within the Pinelands" (Paragraph #7). The report also confirms that, contrary to the PPA's assertion that the numerical "quality of service" criteria were not applied to the PCS Plan but only recommended for future use, these criteria were, in fact, used to assess the adequacy of the proposed PCS service (Paragraph #17.3 on pp.6-7) (note: Dr. Kam has also specifically confirmed, in response to a request by the Commission staff, that the numerical criteria, found on p. 8 of the draft report, were employed in the analysis of both the cellular and the PCS plans). Furthermore, the consultants "conducted independent sample calculations to ascertain accuracy of the information supplied by the providers" (Paragraph #8 on p. 3). The other PPA comments are addressed throughout this report.

As the foregoing analyses indicates, the Plan now meets the standards of the CMP and can be recommended for Commission approval. However, such a recommendation does not mean that the companies' plan is perfect. New towers will be built in sensitive areas of the Pinelands. More visual clutter will detract from the vistas that characterize the Pinelands. Some residents remain concerned about towers located close to their homes. Disagreements between the PCS companies, cellular providers, municipalities and the Commission regarding the final location of new towers are possible. Disagreements among wireless providers about the co-location policy are possible. Disagreements between the PCS companies and the Commission regarding the need for Plan amendments are also possible. Finally, the Plan does not cover all theoretical wireless PCS needs in the Pinelands. Yet, even considering these shortcomings, the Plan does establish a blueprint which, if successfully implemented, will provide for adequate communications service in the Pinelands and will result in less visual pollution than is likely in other parts of the State and country.

Even with approval of this Plan, individual facilities will have to be approved by the Commission in accordance with the provisions of N.J.A.C. 7:50-5.4 and other applicable CMP standards. In the review of such applications, the Commission will be guided by the hierarchical policy for siting individual wireless communications facilities, which is appended to this report as Appendix D.

Therefore, the Acting Executive Director recommends that the Pinelands Commission approve the "Comprehensive Plan for PCS Communication Facilities in the Pinelands." The Acting Executive Director also recommends that the Commission expressly affirm that the review of the development applications for individual sites needs to be done in accordance with this Report, including the appendices, in order to be consistent with CMP requirements.