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The New Cell Tower in Mandarin Built by and/or for Sprint and Sprint PCS

 

 

In its Form 10-K for 1997, as filed with the Securities and Exchange Commission on March 5, 1998, Sprint made the following statements and disclosures:

Sprint Corporation, incorporated in 1938 under the laws of Kansas, is mainly

a holding company. The principal activities of Sprint and its subsidiaries

(Sprint) include domestic and international long distance and local exchange

telecommunications services. Other activities include emerging businesses

and product distribution and directory publishing as discussed below.

As part of an overall strategy to increase personal communication services

(PCS) coverage, Sprint directly acquired the rights to PCS licenses. The

licenses cover 139 markets across the United States, reaching a total

population of 70 million. Sprint plans to affiliate these licenses with the

licenses previously acquired by Sprint Spectrum Holding Company, L.P.

(Sprint PCS). With this affiliation, licensed coverage for Sprint-branded

PCS will include nearly 260 million people across the United States, Puerto

Rico and the U.S. Virgin Islands. Sprint began construction in some markets

in 1997. While zoning issues will dictate the rate of buildout progress,

Sprint hopes to achieve coverage in areas that could reach 25 to 30 million

people by the end of 1998.

 

According to the Florida Department of State, Sprint PCS was formed on August 1, 1996, and is known as Sprint Spectrum Holding Company, L.P. Its general partners are Sprint Enterprises, L.P., TCI Telephone Services, Inc., Comcast Telephone Services, and Cox Telephone Partnership. Its FEI Number is 48-1165242.

According to Sprint PCS=s website [http://www.sprintpcsnews.com], the following are facts about Sprint PCS:

Organization:

Sprint PCS is a partnership of Sprint Corporation, a global communications company, and three of the largest cable television companies in the U.S. - Tele-Communications, Inc. (TCI), Comcast Corporation, and Cox Communications.

Mission:

To be the preeminent, national, full-service provider of wireless communications products and services.

Employees:

More than 7,000 people are employed by Sprint PCS nationwide.

Service Area:

Sprint PCS has the largest 100 percent digital, 100 percent PCS nationwide wireless network in the United States, already serving 156 metropolitan markets which serve people in more than 4,000 cities and communities across the country. Sprint PCS, together with its affiliates and Sprint Corporation, has licensed PCS coverage of nearly 260 million people in all 50 states, Puerto Rico and the U.S. Virgin Islands. Sprint PCS is a partnership of Sprint Corporation, Tele-Communications, Inc. (TCI), Cox Communications, Inc. and Comcast Corporation.

Service Features:

Sprint PCS provides better connections, better service and better value using its state-of-the-art, 100% digital, nationwide PCS wireless network. A Sprint PCS phone is a versatile communications device, incorporating voicemail, caller ID and other enhanced services in a simple, easy-to-use package. Sprint PCS phones also will have short messaging services and wireless data communications capabilities in the future.

Sprint PCS Technology:

Sprint PCS uses Code Division Multiple Access (CDMA), the most advanced PCS technology available, offering superior voice quality, security and call-carrying capacity.

Network Vendors:

Lucent Technologies, Motorola and Nortel are designing and constructing the Sprint PCS nationwide network - currently available in 156 metropolitan markets coast to coast.

 

According to Sprint=s Form 10-K for 1997 [http://www.sec.gov/Archives/edgar/data/101830/0000101830-98-000015.txt], the following statements and disclosures are made re Sprint PCS:

Sprint PCS

Sprint is a 40% partner in Sprint PCS, a partnership with Tele-Communications,

Inc., Comcast Corporation and Cox Communications, Inc. Sprint PCS is

building the nation’s first single-technology, all-digital, state-of-the-art wireless

network to provide PCS across the United States. PCS uses digital technology,

which has sound quality superior to existing cellular technology and is less

susceptible to interference and eavesdropping. PCS also offers features such as

voice mail and Caller ID. Sprint PCS offers service in more than 130

metropolitan markets, which include more than 600 cities.

As part of an overall strategy to increase PCS coverage, Sprint directly

acquired the rights to PCS licenses covering 139 markets across the United

States. These licenses reach a total population of 70 million people. Sprint

expects to affiliate these licenses with Sprint PCS. With this affiliation,

licensed coverage for Sprint-branded PCS will include nearly 260 million people

across the United States, Puerto Rico and the U.S. Virgin Islands.

On May 13, 1997, Sprint=s subsidiary, SprintCom, Inc. (a for-profit Kansas corporation), filed for authority to do business in the State of Florida. Based upon public records at the Florida Department of State, SprintCom, Inc. is headquartered together with its parent company at 2330 Shawnee Mission Parkway, Westwood, Kansas 66205.

On August 12, 1997, JEA=s managing director, Walt Bussells, advised the JEA=s Service Delivery Committee as follows:

SprintCom, Inc. and Alltel Communications, Inc. are anxious to establish

cellular service in Jacksonville and are looking at 12 possible sites at JEA

facilities. If 10 sites should prove feasible, the revenue would be comparable

to PCS PrimeCo and InterCel, or equal to about $125,000 per year. Agreed

sites must meet all permitting requirements including the new zoning

regulations adopted by the City of Jacksonville. Also, the lessees are required

to perform engineering studies which are reviewed by JEA staff to insure the

structural integrity of the towers used and the continued reliability of existing

communications systems located thereon. New T&S Facilities Lease Agreements

have been prepared between JEA, SprintCom, Inc. and Alltel Communications,

Inc. and have been approved as to form by Assistant General Counsel Neill W.

McArthur, Jr.

On August 19, 1997, the JEA Board of Directors approved a Master Lease Agreement

between JEA and SprintCom, Inc. The Master Lease Agreement contained the following provisions:

4. USE.

 

(a) Lessee, at its sole expense, shall use each site, under the Master

Lease, for the purpose of installing, removing, maintaining and

operating its communications facilities. An inventory of Lessee=s

communication=s facilities to be installed at the leased site will be

provided in each Site Amendment.

(c) Lessee shall comply with all applicable Rules and Regulations of the

Federal Communications Commission, Federal Aviation Agency, and all

applicable codes and regulations of the city, county, and state concerned

in the installation and operation of Lessee=s communication facilities and

have and maintain in effect at all times, all necessary franchises, consents,

rights-of-way, easements, permits, and authorizations applicable to this

Master Lease and Site Amendments. . . .

 

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5. INSTALLATION.

 

(a) . . . Where it is necessary for Lessee to replace an existing Lessor Tower with a Replacement Tower, ownership interest will remain with the Lessor and there will be no abatement of Annual Rent for the cost of the Replacement Tower.

 

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8. MAINTENANCE OF FACILITIES. Lessee agrees to maintain its communication facilities in proper operating condition and maintain same in satisfactory condition as to safety. Lessor shall be responsible for operating its towers in compliance with applicable FCC and FAA rules and regulations. . . .

 

On October 13, 1997, the JEA and SprintCom, Inc. entered into ASite Amendment Number 079-2" to the Master Lease Agreement between Jacksonville Electric Authority and SprintCom, Inc. The Site Amendment had been signed by SprintCom, Inc. on August 25, 1997.

On December 18, 1997, Sprint PCS sent the JEA a new Site Amendment for the Mandarin substation site. Sprint PCS=s Property Specialist, Colleen Carroll stated: AWe [Sprint PCS] will be replacing JEA Pole #2 with a new 100’ concrete pole.@

The Site Amendment provided for the construction and installation of personal communication system (PCS) equipment at 3476 Loretto Road. Sprint=s Site Plan attached as Exhibit G to the Site Amendment reflects a New 100’ Spiral Concrete Monopole to be installed within 35’ of the adjoining residential property line. Sprint=s Site Plan reflects that the existing J.E.A. Pole No. 2, 80’ High Steel, Circuit 823, would be removed following the new pole installation.

On January 8, 1998, JEA returned approved prints to Sprint PCS for the replacement of JEA Pole No. 2. JEA advised Sprint PCS that it wanted to review the concrete pole submittal drawing before manufacture of the pole, primarily for the drilling details for the attachment of JEA=s transmission hardware.

Sprint PCS subsequently contracted with S. R. Daniels Construction Co., Inc. to install the new 100’ tall spiral concrete monopole, together with the associated PCS equipment. The new concrete monopole was specifically designed for use as a communication tower, including its height above ground, its width, its hollow core, and its depth below ground. While it does accommodate JEA=s transmission lines (which were previously attached to an 80’ high steel pole), the new 100’ high concrete pole was Aprincipally intended to support communication equipment for telephone, radio and similar communication purposes.@ Without the solicitation from Sprint to erect a new monopole for the buildout of its PCS system, there would have been no need to remove JEA=s existing 80’ high steel pole.

In 1996, the City Council adopted a new Part 15 (COMMUNICATION ANTENNAS AND COMMUNICATION TOWERS) to Chapter 656 (the JACKSONVILLE ZONING CODE). [Ord. 96-305-296 and Ord. 96-760-412]

In Section 656.1501, the City Council set out its findings, intent and purpose behind the new provisions as follows:

656.1501. Legislative findings, intent and purpose. The city has on numerous occasions and with increasing frequency been confronted with requests to site communication towers. Prior to the adoption of this ordinance, the Zoning Code contained no provisions specifically related to siting communication towers. It is the intent of this Part 15 to promote the health, safety and general welfare of the citizens by regulating the siting of communications tower. Accordingly, the City Council finds that the promulgation of this ordinance is warranted and necessary to accomplish the following purposes:

(a) To direct the location of communication towers within the city;

(b) To protect residential areas and land uses from potential adverse impacts of communication towers;

© To minimize adverse visual and aesthetic impacts of communication towers through careful design, siting, landscape screening, and innovative aesthetic mitigation;

(d) To accommodate the growing need for communication towers;

(e) To promote and encourage shared use/co-location of existing and new communication towers as the preferred option rather than construction of additional single-use towers;

(f) To consider the public health and safety of communication towers;

(g) To avoid or minimize potential damage to adjacent properties, from the perspective of public safety, from tower failure through engineering and careful siting of tower structures.

The guts of the new provisions were contained within Section 656.1503 which provided as follows:

656.1503 Applicability; use of existing structures.

 

(a) All new communication towers in the city, including those located on governmental property, shall be subject to these zoning regulations and all other applicable building and construction codes. In the event of any conflict between the zoning district regulations and the regulations contained in this Part 15, the provisions of this Part 15 shall override and supersede such other regulations unless otherwise specifically set forth herein.

 

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(d) No rezoning, zoning exception or variance shall be required to locate a communication antenna on an existing structure, provided however, that the communication antenna does not extend more than twenty feet above the existing structure. Such structures may include, but are not limited to, buildings, water towers, existing communications towers, recreational light fixtures and other essential public utility structures.

As part of the new provisions, the City Council separately defined Acommunication antenna@ and Acommunication tower@ as follows:

656.1502. Definitions. For purposes of this Part, definitions provided for in Part 16 shall apply, and the following words and terms are defined as follows:

Communication antenna means an antenna, appurtenant to a structure, designed to transmit and/or receive communications authorized by the Federal Communications Commission (FCC).

Communication tower means a principal structure which is principally intended to support communication equipment for telephone, radio and similar communication purposes. The term "communication tower" shall not include towers utilized by amateur radio operators not licensed by the Federal Communications Commission (FCC). Communication towers are generally described as either monopole (free standing), lattice (self-supporting), or guyed (anchored with guy wires or cables).

The City Council adopted minimum distance requirements from residential zoning districts for communication towers, as follows:

656.1505 Minimum distance of communication towers from residential zoning districts; Commercial, Residential, Office Zoning Districts.

(a) Regardless of the zoning district in which the communication tower is located, the minimum distance of the tower shall be not less than two hundred feet from the nearest residential lot line of any Residential Medium Density (RMD), Commercial, Residential, Office (CRO) or Residential High Density (RHD) Districts and not less than two hundred fifty feet from the nearest lot line of any Residential Low Density (RLD), Rural Residential (RR) District, the AGR IV land use category or any Residential Enclave Overlay Zone designated pursuant to Part 3, Subpart J. herein.

(b) Minimum distances shall be measured from the center of the base of the communication tower to the lot line of the applicable residential zoning district.

 

Otherwise, a zoning exception or variance would be required. The City Council adopted specific criteria for the application of such exceptions and variances in Section 656.1517 of the Ordinance Code.

The New 100’ Spiral Concrete Monopole in Mandarin is a Acommunication tower@ within the meaning of Part 15, Chapter 656. To allow Sprint PCS to place a Acommunication antenna@ on top of this New 100’ Spiral Concrete Monopole (designed by and built for Sprint PCS) by referring to the new monopole as simply an Aexisting structure@ is patently absurd.