BILL ANALYSIS Ó
AB 57
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Date of Hearing: May 13, 2015
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Brian Maienschein, Chair
AB 57
(Quirk) - As Amended April 6, 2015
SUBJECT: Telecommunications: wireless telecommunication
facilities.
SUMMARY: Requires a colocation or siting application for a
wireless telecommunications facility to be deemed approved, if
specified conditions are met, and applies these provisions to
all counties and cities, including charter cities.
Specifically, this bill:
1)Requires a colocation or siting application for a wireless
telecommunications facility to be deemed approved, if both of
the following occur:
a) The city or county fails to approve or disapprove the
application within the time periods established by the
Federal Communications Commission in In re Petition for
Declaratory Ruling, 24 FCC Rcd. 13994 (2009); and,
b) All public notices regarding the application have been
provided consistent with the public notice requirements for
the application.
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2)States that the Legislature finds and declares that a wireless
telecommunications facility has a significant economic impact
in California and is not a municipal affair as that term is
used in Section 5 of Article XI of the California
Constitution, but is a matter of statewide concern.
EXISTING LAW:
1)Defines the following terms:
a) "Collocation facility" to mean the placement or
installation of wireless facilities, including antennas,
and related equipment, on, or immediately adjacent to, a
wireless telecommunications collocation facility.
b) "Wireless telecommunications facility" to mean equipment
and network components, such as towers, utility poles,
transmitters, base stations, and emergency power systems
that are integral to providing wireless telecommunications
services.
c) "Wireless telecommunications collocation facility" to
mean a wireless telecommunications facility that includes
collocation facilities.
2)Provides that a collocation facility shall be a permitted use
not subject to a city or county discretionary permit, if it
satisfies the following requirements:
a) The collocation of facility is consistent with
requirements for the wireless telecommunications
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collocation facility pursuant to 3), below, on which the
collocation facility is proposed;
b) The wireless telecommunications collocation facility on
which the collocation facility is proposed was subject to a
discretionary permit by the city or county and an
environmental impact report (EIR) was certified, or a
negative declaration or mitigated negative declaration was
adopted for the wireless telecommunications collocation
facility in compliance with the California Environmental
Quality Act (CEQA), the requirements of Section 21166 do
not apply, and the collocation facility incorporates
required mitigation measures specified in that EIR,
negative declaration, or mitigated negative declaration.
3)Provides that a wireless telecommunications collocation
facility, where a subsequent collocation facility is a
permitted use not subject to a city or county discretionary
permit pursuant to 2), above, shall be subject to a city or
county discretionary permit issued on or after January 1,
2007, and shall comply with all of the following:
a) City or county requirements for a wireless
telecommunications collocation facility that specifies
types of wireless telecommunications facilities that are
allowed to include a collocation facility, or types of
wireless telecommunications facilities that are allowed to
include certain types of collocation facilities; height,
location, bulk, and size of the wireless telecommunications
collocation facility; percentage of the wireless
telecommunications collocation facility that may be
occupied by collocation facilities; and, aesthetic or
design requirements for the wireless telecommunications
collocation facility;
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b) City or county requirements for a proposed collocation
facility, including any types of collocation facilities
that may be allowed on a wireless telecommunications
collocation facility; height, location, bulk, and size of
allowed collocation facilities; and, aesthetic or design
requirements for a collocation facility;
c) State and local requirements, including the general
plan, any applicable community plan or specific plan, and
zoning ordinance; and,
d) CEQA through certification of an EIR, or adoption of a
negative declaration or mitigated negative declaration.
4)Requires the city or county to hold at least one public
hearing on the discretionary permit required pursuant to 3),
above, and requires notice to be given as specified, unless
otherwise required.
5)States that the Legislature finds and declares that a
collocation facility has a significant economic impact in
California and is not a municipal affair, but is a matter of
statewide concern.
6)Limits the consideration of the environmental effects of radio
frequency emissions by the city or county to that authorized
by Section 332(c)(7) of Title 47 of the United States Code, as
specified.
FISCAL EFFECT: None
COMMENTS:
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1)Bill Summary. This bill requires a colocation or siting
application for a wireless telecommunications facility to be
deemed approve, if both of the following occur: (1) The city
or county fails to approve or disapprove the application
within the time periods established by the FCC 2009
Declaratory Ruling; and, (2) All public notices regarding the
application have been provided consistent with the public
notice requirements for the application. The bill declares
that a wireless telecommunications facility has a significant
economic impact in California and is not a municipal affair,
but is a matter of statewide concern, thus applying the
requirements of the bill to all cities, including charter
cities.
This bill is sponsored by the author.
2)Author's Statement. According to the author, "In order to
encourage the expansion of wireless networks, Congress passed
the Telecommunications Act of 1996, which requires a local
jurisdiction to act on a wireless facility colocation or
siting application within a "reasonable period of time." As
the entity charged with implementing the Act, the Federal
Communications Commission (FCC), issued a declaratory ruling
that a "reasonable period of time" is presumptively 90 days
to process collocation applications and 150 days to process
all other applications.
"While the FCC's regulations were promulgated pursuant to the
agency's rulemaking and adjudicatory authority, thus carrying
the force of law, local jurisdictions charged with acting on
these wireless facility applications often ignore the FCC's
timeline. If the FCC deadlines are not met, the only remedy
currently available to the provider seeking the permit is to
sue the local jurisdiction in court.
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"Instead of requiring the provider to seek a judicial remedy
to enforce the FCC's timeline, AB 57 would provide that a
wireless facility colocation or siting application that is not
acted on by the local jurisdiction within the timeline shall
be "deemed approved." Consistent with the FCC's finding that
"wireless service providers have faced lengthy and
unreasonable delays in the consideration of their facility
siting applications, and that the persistence of such delays
is impeding the deployment of advanced and emergency
services," this bill would close a loophole that allows a
local jurisdiction to effectively extend the timeline beyond
that established by the FCC.
"Nothing in AB 57 limits or affects the authority of a local
jurisdiction over siting decisions, as they still retain all
existing rights to deny applications that do not meet the
jurisdiction's lawful siting requirements. AB 57 simply
provides a workable remedy for a local jurisdiction's failure
to abide by existing federal deadlines."
3)Background on Siting of Wireless Facilities. In the
Telecommunications Act of 1996, Congress imposed specific
limitations on the traditional authority of state and local
governments to regulate the location, construction, and
modification of [towers and antennas], and incorporated those
limitations into the federal Communications Act of 1934.
Section 201 (b) of that Act empowers the FCC to "prescribe
such rules and regulations as may be necessary in the public
interest to carry out [its] provisions." The Act imposed five
substantive limitations codified in 47 U.S. C Section
332(c)(7)(B). One of those limitations, Section 332
(c)(7)(B)(ii), required state or local governments to act on
wireless siting applications "within a reasonable period of
time after the request is duly filed."
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On November 18, 2009, the FCC released a Declaratory Ruling
(In re Petition for Declaratory Ruling, 24 FCC Rcd. 13994
(2009)) in response to a July 11, 2008, petition filed by CTIA
- The Wireless Association, asking the FCC to clarify
provisions in Section 253 and 332(c)(7) of the Communications
Act of 1934, as amended, regarding state and local review of
wireless facility siting applications. That Declaratory
Ruling found that a "reasonable period of time" for a state or
local government to act on a personal wireless service
facility siting application is presumptively 90 days for
collocation applications and presumptively 150 days for siting
applications other than collocations, and that the lack of a
decision within this timeframes constitutes a "failure to act"
based on which a service provider may commence an action in
court under Section 332(c)(7)(B)(v). The 2009 Declaratory
Ruling noted that "by clarifying the statute in this manner,
we recognize Congress' dual interests in promoting the rapid
and ubiquitous deployment of advanced, innovative, and
competitive services, and in preserving the substantial area
of authority that Congress reserved to State and local
governments to ensure that personal wireless service facility
siting occurs in a manner consistent with each community's
values."
The cities of Arlington and San Antonio, Texas, sought review
of the 2009 Declaratory Ruling in the Fifth Circuit. They
argued that the FCC lacked authority to interpret Section
332(c)(7)(B)'s limitations. Relying on Circuit precedent, the
Court upheld the presumptive 90- and 150- deadlines and
entitled to Chevron deference. The Supreme Court of the
United States granted certiorari to look at whether a court
should apply Chevron to an agency's determination of its own
jurisdiction. On May 20, 2013, the judgment of the Court of
Appeals was affirmed by the Supreme Court, thus confirming
that Congress has vested the FCC with general authority to
administer the Communications Act through rulemaking and
adjudication.
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The Middle Class Tax Relief and Job Creation Act of 2012
(Spectrum Act) was signed into law by President Barack Obama
on February 22, 2012, and included provisions regarding
wireless facilities deployment. Section 6409 (a) of that Act
states that "a state or local government may not deny, and
shall approve, any eligible facilities request for a
modification of an existing wireless tower or base station
that does not substantially change the physical dimensions of
such a tower or base station."
In a report released by the FCC on October 21, 2014, the FCC
interpreted and implemented the "collocation" provisions of
Section 6409(a) of the Middle Class Tax Relief and Job
Creation Act of 2012. The report noted that Section 6409 (a)
included a number of undefined terms, and the FCC adopted
rules to clarify many of the terms and enforce their
requirements. Among other measures, the FCC:
Clarified that Section 6409 (a) applies to support
structures and to transmission equipment used in connection
with any Commission-licensed or authorized wireless
transmission;
Clarified that a modification "substantially changes"
the physical dimensions of a tower or base station, as
measured from the dimensions of the tower or base station
inclusive of any modifications approved prior to the
passage of the Spectrum Act, if it meets specified
criteria;
Provided that states and localities may continue to
enforce and condition approval on compliance with generally
applicable building, structural, electrical, and safety
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codes and with other laws codifying objective standards
reasonable related to health and safety;
Provided that a state or local government may only
require applicants to provide documentation that is
reasonably related to determining whether the eligible
facilities request meets the requirements of 6409 (a);
Required, within 60 days from the date of filing,
accounting for tolling, a state or local government to
approve an application covered by Section 6409 (a);
Provided that an application filed under Section 6409
(a) is deemed granted, if a state or local government fails
to act on it within the requisite time period.
The 2014 FCC report also clarified Section 332(c)(7) of the
Communications Act and the FCC's 2009 Declaratory Ruling, as
follows:
Clarified, with regard to the FCC's determination in the
2009 Declaratory Ruling that a state or municipality may
toll the running of the shot clock, if it notifies the
applicant within 30 days of submission that its application
is incomplete, that:
o The timeframe begins to run when an
application is first submitted, not when it is deemed
complete by the reviewing government;
o A determination of incompleteness tolls the
shot clock only, if the state or local government
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provides notice to the applicant in writing within 30
days of the application's submission, specifically
delineating all mission information, and specifying
the code provision, ordinance, application
instruction, or otherwise publically-stated procedures
that require the information to be submitted;
o Following an applicant's submission in
response to a determination of incompleteness, the
state or local government may reach a subsequent
determination of incompleteness based solely on the
applicant's failure to supply the specific information
that was requested within the first 30 days;
o The shot clock begins running again when the
applicant makes its supplemental submission; however,
the shot clock may again be tolled if the state or
local government notifies the applicant within 10 days
that the supplemental submission did not provide the
specific information identified in the original notice
delineating missing information.
Clarified that the presumptively reasonable timeframes
run regardless of any applicable moratoria;
FCC declined to adopt an additional remedy for state or
local government failures to act within the presumptively
reasonable time limits.
On March 6, 2015, Montgomery County, Maryland filed a lawsuit
in the United States Court of
Appeals for the Fourth Circuit, petitioning for review of the
2014 FCC Report that made
federal rules implementing Section 6409(a) of the Middle Class
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Tax Relief and Job Creation Act
of 2012, stating that the Report is inconsistent with the United
States Constitution; an
unlawful interpretation of Section 6409(a) and other statutory
provisions; arbitrary and
capricious and an abuse of discretion; and otherwise contrary to
law.
1)Previous Legislation. AB 162 (Holden, 2013) would have
prohibited a local government from denying an eligible
facilities request, as defined, for a modification of an
existing wireless telecommunications facility or structure
that does not substantially change the physical dimensions of
the wireless telecommunications facility or structure, and
would have required a local government to act on eligible
facilities request within 90 days of receipt.
The measure was referred to the Local Government Committee but
was never heard.
2)Policy Considerations. The Committee may wish to consider the
following:
a) Specific Examples. The author notes that local
jurisdictions charged with acting on these wireless
facility applications often ignore the FCC's timeline. The
Committee may wish to ask the author for specific examples
in which this has happened in California, and to determine
whether this is a widespread practice that warrants a
legislative fix.
b) "Deemed Approved." According to the American Planning
Association, California Chapter (APA), the California State
Association of Counties (CSAC), and the Urban Counties
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Caucus (UCC), in opposition, "In 2014, the FCC determined
that under a new federal law (47 U. S. C. 1455 (a)),
applications for modifications to wireless facilities would
be "deemed approved" in 60 days provided those
modifications not substantially "change the physical
dimensions" of the existing wireless facility. The FCC's
"deemed approved" requirement doesn't apply to new wireless
siting applications, which require more time for important
environmental and esthetical review and permit processing,
nor does it apply to colocations that involve substantial
increases in the size of the permitted facility. In AB 57,
however, the state would apply this remedy to both new
applications and all colocation applications."
The Committee may wish to ask the author why it is
necessary to go beyond the requirements and regulations
promulgated by the FCC.
c) Incentivizing Denial? APA, CSAC, and UCC note that
"adding a "deemed approved" rule to state law where none
presently exists, as proposed under AB 57, could incentive
local jurisdictions to deny new siting or colocation
applications in order to avoid allowing the shot-clock to
run out before the local agency has been able to
effectively negotiate on environmental and aesthetic
matters that are at the heart of community concerns. In
this way, AB 57 could promote litigation rather than
successful deployment of new or improved wireless
infrastructure."
3)Arguments in Support. Supporters argue that the current
remedy in which the wireless provider may sue the locality for
unreasonable delay in any 'court of competent jurisdiction,'
is not a meaningful remedy and that California's courts are
already overburdened. Supporters note that the inherent delay
in bringing a lawsuit over a single application, when a
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wireless provider may have hundreds of applications, make the
FCC rule all but meaningless in this state, and that as a
result, local governments can, and often do, get away with
violating federal law.
4)Arguments in Opposition. Opposition argues that this bill
goes beyond the requirements
of federal law and regulations, and that this bill effectively
eliminates the ability of local agencies to meet the needs and
best interests of local communities and determining the siting
and collocation of wireless facilities. Opposition notes that
federal law and regulations are sufficient on the matter and
moreover that the state should not enact statute that expands
the rights of wireless carriers beyond what is provided by
federal law.
REGISTERED SUPPORT / OPPOSITION:
Support
AT & T
CalChamber
CALWA - The California Wireless Association
CTIA - The Wireless Association
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California Manufacturers & Technology Association
PCIA - The Wireless Infrastructure Association
Silicon Valley Leadership Group
Sprint
Tech America
TechNet
T-Mobile
Valley Industry & Commerce Association
Verizon
Opposition
American Planning Association, California Chapter
California State Association of Counties
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City of Burbank
Rural County Representatives of California
Urban Counties Caucus
Analysis Prepared by:Debbie Michel / L. GOV. / (916) 319-3958