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Home My WebLink About2. Wireless Regulation UpdatesSTAFF REPORT PLANNING DIVISION DATE: FEBRUARY 6, 2019 TO: PLANNING COMMISSION SUBMITTED BY: ALDO E. SCHINDLER, DIRECTOR OF COMMUNITY DEVELOPMENT SUBJECT: PRESENTATION – UPDATE ON WIRELESS COMMUNICATION REGULATIONS DISCUSSION A presentation to the Planning Commission regarding wireless communication regulations. EXHIBITS A. PowerPoint Presentation – Wireless Communication Regulations  2017 Best Best & Krieger LLP Gail A. Karish February 6, 2019 twitter.com/BBKlaw 1 Wireless Regulation Primer Planning Commission Meeting City of Downey 2 Topics •Basics of Technology & Terminology •Federal Laws Impacting Local Authority •State Laws Impacting Local Authority •Recent FCC Orders •Future Trends 3 Types of Wireless Facilities •Macrocell •a high-powered antenna in a mobile phone network that is designed to serve a large area from a single site. Macrocells are often associated with monopoles, or guyed or lattice towers. Towers may be owned by one entity and shared by many providers •Small Cell •low-powered antennas that have a shorter range. Nodes may or may not be connected by fiber. Small refers to area covered, not size of facility; typically don’t require tall structures. Small cells today typically serve one provider. Term includes a number of different devices – e.g. picocells, femtocells and microcells •Distributed Antenna System (DAS) •A network of spatially separated antennas (nodes) connected to a common source (a hub) via a transport medium (often fiber optics) that provide wireless service within a specific geographic area or building. DAS systems can be owned by one entity and shared by a limited number of providers. Antennas do not need to be as high as traditional macrocells •Note: small cells and DAS typically installed in buildings, stadiums, etc. and increasingly in the public rights-of-way. Macro Site Basic Components •Antenna(s) •Equipment •Connecting Cable(s) •Support Structure •Power Source (Meter/Battery) •Backhaul (wired or wireless) The State Bar of California 85th Annual Meeting, October 11-14, 2012, Monterey 5 Small Cells & Distributed Antenna Systems The State Bar of California 85th Annual Meeting, October 11-14, 2012, Monterey NextG DAS Diagram 6 Federal Laws Impacting Local Authority •47 U.S.C. § 253 (1996) •Preempts local regs that prohibit or have effect of prohibiting ability of any entity to provide telecommunications services •But does not reach nondiscriminatory PROW management or compensation requirements •47 U.S.C. § 332(c)(7) (1996) •Generally preserves local zoning authority to control placement of personal wireless service facilities, subject to certain substantive and procedural limits •47 U.S.C. § 1455(a) (2012) (Sec. 6409) •Applies to all “wireless” applications •Preempts local discretion over certain collocations and modifications to existing wireless sites; i.e., must approve 7 47 U.S.C. § 332(c)(7) o Limitations on local zoning authority: •Shall not “unreasonably discriminate” among providers of functionally equivalent services •Shall not prohibit or effectively prohibit the provision of personal wireless services •Must act on request within “reasonable period of time” •Must make final decision to deny “in writing” and supported by “substantial evidence” in written record •May not regulate facilities based on concerns about the environmental effects of radio frequency emissions to the extent that such facilities comply with the FCC’s regulations concerning such emissions 8 FCC Wireless Rules and Orders FCC Shot Clocks & Deemed Grant (2009, 2014) •Sec. 332 (c)(7): 90 and 150 day shot clocks apply to local review of collocations and new sites whether macro or small cells/DAS. No federal deemed grant. •Sec. 6409(a): “eligible facilities requests” 60 day shot clock and deemed granted remedy apply to local review; specific parameters for EFR affecting structures within and outside PROW. Federal deemed grant. 9 FCC 2009 Shot Clocks •Sec. 332(c)(7) shot clocks are “presumptively reasonable period within which to act” i.e., rebuttable. •Automatic tolling for incompleteness if NOI complies with FCC “shot clocks within the shot clocks” •Incomplete notice not effective to the extent it asks for information not publicly stated as a requirement prior to the submittal. •Must send initial written incomplete notice within the first 30 days . •Must send subsequent notices within 10 days after a response to an incomplete notice. •Subsequent incomplete notice not effective to extent it asks for information not requested in first notice. •Parties can always agree in writing to toll any FCC shot clock. 10 Key Cases •Effective Prohibition: •T-Mobile v. Anacortes, 572 F.3d 987 (9th Cir. 2009); MetroPCS Inc. v. San Francisco, 400 F.3d 715 (9th Cir. 2005). Applicant must show: •that a significant gap in its own service exists; and •it proposed the least intrusive means to close that gap considering alternatives •Unreasonable Discrimination: •Am. Tower Corp. v. San Diego, 763 F.3d 1035, 1053 (9th Cir. 2014) “[P]roviders alleging unreasonable discrimination must show that they have been treated differently from other providers whose facilities are similarly situated in terms of the structure, placement or cumulative impact as the facilities in question.” •RF Emissions and Property Values •AT&T Wireless Services of California LLC v. City of Carlsbad, 308 F. Supp. 2d 1148, 1159 (S.D. Cal. 2003): Public concerns about property values may be found to serve as a proxy for impermissible concerns about RF emissions. 11 Key Cases •Decision in Writing: •T-Mobile South LLC v. Roswell, 135 S.Ct. 808, 818 (2015) The Telecom Act “does not require localities to provide [its] reasons in written denial letters . . . [so long as the locality] states its reasons with sufficient clarity in some other written record issued essentially contemporaneously with the denial.” •Substantial Evidence: •Am. Tower Corp. v. San Diego, 763 F.3d 1035, 1053 (9th Cir. 2014) “The substantial evidence inquiry is deferential: [we] may not overturn the [City’s] decision on ‘substantial evidence’ grounds if that decision is authorized by applicable local regulations and [is] supported by a reasonable amount of evidence (i.e., more than a ‘scintilla’ but not necessarily a preponderance).” 12 State Laws Impacting Local Authority (Zoning) •Limitations on zoning authority: •Gov. Code § 65850.6 (2006): •Discretionary permit to approve base facilities that may later add collocation facilities. •No discretionary review of facilities collocated on base facility. •With respect to the consideration of the environmental effects of radio frequency emissions, the review by the city or county shall be limited to that authorized by Section 332(c)(7) of Title 47 of the United States Code, or as that section may be hereafter amended •Gov. Code § 65964 (2006) prohibits: •Escrow deposit for removal of a facility. (bonds ok) •Permit of less than 10 years (unless “public safety” or “land use” reasons). •Requirement that all facilities to be located on sites owned by particular parties. •Gov. Code 65964.1 (AB 57 adopted in 2015) •Established “deemed granted” remedy to the 90 and 150 day FCC shot clocks •SB 649 small cell bill (2017-vetoed by Governor) The State Bar of California 85th Annual Meeting, October 11-14, 2012, Monterey 13 State Laws Impacting Local Authority (PROW) •No local franchising authority: •Pub. Util. Code § 7901 state franchise to telephone companies to use PROW, subject to limitations •Includes wireless •Locals do have siting authority in ROW: •shall not “incommode the public use” •Discretionary review considering aesthetics ok (T-Mobile v. San Francisco – pending Cal. Sup. Ct) •Pub. Util. Code § 7901.1 - reasonable control as to the time, place, and manner in which roads…are accessed •Pub. Util. Code § 2902 – regulate use and repair of public streets, location of the poles, wires, mains, or conduits of any public utility, on, under, or above any public streets The State Bar of California 85th Annual Meeting, October 11-14, 2012, Monterey 14 Recent FCC Orders (2018) •2 major orders released in August and September 2018 •Main focus is “small cells” •Some aspects of the orders also affect all applications •Both have been appealed in federal court The State Bar of California 85th Annual Meeting, October 11-14, 2012, Monterey 15 FCC’s Moratoria Order •August 3: In the Matter of Accelerating Wireless Broadband Deployment By Removing Barriers to Infrastructure Investment, FCC 18-111, Third Report and Order and Declaratory Ruling, WT Docket No. 17-79 •Holding: de jure and de facto moratoria on deployment generally “prohibit or effectively prohibit” provision of telecom services in violation of federal law, and are not saved from preemption as a form of PROW management •de facto moratoria are “…state or local actions that are not express moratoria, but that effectively halt or suspend the acceptance, processing, or approval of applications or permits for telecommunications services or facilities in a manner akin to an express moratorium.” •Effective immediately The State Bar of California 85th Annual Meeting, October 11-14, 2012, Monterey 16 FCC’s Small Cell Order •September 26: Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Declaratory Ruling and Third Report and Order, FCC WT Docket No. 17-79 •Went into effect on January 14, 2019, except for rules on aesthetic regulations which go into effect on April 15, 2019 •Order has been challenged in federal court by local governments and by industry. FCC and 10th Circuit denied requests for stay of order pending litigation. •Appeals have been transferred to 9th Circuit •Petitions for reconsideration have also been filed •Expect decision in the next 1-2 years 17 FCC’s Small Cell Order •Two major components to the order: •special rules for applications for small cells. Small cells will mostly be deployed in public ROW but rules are not limited to ROW applications. •Also “clarifies” issues related to all Sec. 332 Shot Clocks. 18 FCC Clarification: Sec. 332 Shot Clocks •Scope of application •Shot Clocks apply to any request for authorization, that is all permits required for deployment, not just zoning permits, e.g. includes building permits. Para. 133 •Pre Application Meetings •“We conclude that if an applicant proffers an application, but a…locality refuses to accept it until a pre-application review has been completed, the shot clock begins to run when the application is proffered…” Para 145 19 FCC Clarification: Collocation •Two meanings now: •Section 6409 (eligible facilities request) context – there is a structure and the structure has a permitted wireless facility. •All other “collocations” – there is a tower, structure or building present, but no need for it to have a previously approved wireless facility. 20 FCC Definition of a Small Wireless Facility (1) The facilities— (i) are mounted on structures 50 feet or less in height including their antennas …, or (ii) are mounted on structures no more than 10 percent taller than other adjacent structures, or (iii) do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater; (2) Each antenna associated with the deployment, excluding associated antenna equipment … is no more than three cubic feet in volume; (Note: no limit) (3) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume... (4)… (5) … and (6) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in section 1.1307(b). 21 Summary of Small Cell Order •Creates 2 new shorter shot clocks for “small cells” (60 and 90 days). Incompleteness notices must be issued in 10 days. Shot clock restarts at zero upon resubmittal. •Enhanced” remedy for failing to meet new shot clocks •Establishes “materially inhibit” as the standard for effective prohibition of small cells. •Creates tests to see if local government fees and rules on aesthetics, undergrounding & spacing violate “materially inhibit” standard. •Finds Congress did not include a blanket proprietary exception to Section 253 (a) and therefore rents for government property in ROW must be “fair and reasonable.” Translation: fees for use of city-owned vertical infrastructure in ROW must be cost-based 22 Redefinition of Effective Prohibition •“[P]rior approaches erred by requiring coverage gaps…” •“Significant gap” (9th Cir.) and “least intrusive alternative” (2nd, 3rd and 9th Cir.) appear abandoned – See n. 94 • A state or local legal requirement constitutes an effective prohibition if it “materially limits or inhibits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment.” (Para. 35 quoting California Payphone.) •“We clarify that an effective prohibition occurs where a state or local legal requirement materially inhibits a provider’s ability to engage in any of a variety of activities related to its provision of a covered service. This test is met not only when filling a coverage gap but also when densifying a wireless network, introducing new services or otherwise improving service capabilities…also by materially inhibiting the introduction of new services or the improvement of existing services.” (Paragraph 37) 23 According to FCC A Fee Is Permitted If… (1)The fees are a reasonable approximation of the state or local government’s costs, (2)Only objectively reasonable costs are factored into those fees, and (3)Fees are no higher than the fees charged to similarly-situated competitors in similar situations. (4)Presumptively reasonable: Non-recurring fees = •$500 for application with up to 5/$100 for each additional •$1,000 for new pole Recurring fees = $270 per facility including ROW fee and fee for attachment to municipal infrastructure (5) Specifically rejects claim that localities are exempt from 253(c)’s fair and reasonable standard in setting rates for ROW infrastructure (See paras. 92-97.) 24 Aesthetics •Aesthetics requirements (including undergrounding) not preempted if: (1)reasonable, (2)no more burdensome than those applied to other types of infrastructure deployments, and (3)objective and published in advance. •“…aesthetic requirements that are reasonable in that they are technically feasible and reasonably directed to avoiding or remedying the intangible public harm of unsightly or out-of-character deployments are also permissible.” 25 Spacing Requirements •“…a minimum spacing requirement that has the effect of materially inhibiting wireless service would be considered an effective prohibition of service.” Para 87 •“Some parties complain of municipal requirements regarding the spacing of wireless installations… ostensibly to avoid excessive overhead “clutter” that would be visible from public areas. We acknowledge that while some such requirements may violate 253(a), others may be reasonable aesthetic requirements.” Para. 91 •“For example, under the principle that any such requirements be reasonable and publicly available in advance, it is difficult to envision any circumstances in which a municipality could reasonably promulgate a new minimum spacing requirement that, in effect, prevents a provider from replacing its preexisting facilities or collocating new equipment on a structure already in use.” Para. 91 26 Summary •Federal law places various limits on local authority over wireless •State law places some limits and creates deemed granted remedies for 2009 FCC shot clocks •New FCC orders mainly focused on small cells, but order also have important, new clarifications to existing rules 27 Future Trends •More wireless in public rights-of-way •5G and millimeter wave spectrum •Internet of Things •Smart Cities 28 Questions? 28 Gail A. Karish Partner Best Best & Krieger LLP Los Angeles, CA 213-617-7491 Gail.Karish@bbklaw.com