BILL ANALYSIS Ķ
SENATE COMMITTEE ON ENERGY, UTILITIES AND COMMUNICATIONS
Senator Ben Hueso, Chair
2015 - 2016 Regular
Bill No: AB 57 Hearing Date: 6/16/2015
-----------------------------------------------------------------
|Author: |Quirk |
|-----------+-----------------------------------------------------|
|Version: |4/6/2015 Amended |
-----------------------------------------------------------------
------------------------------------------------------------------
|Urgency: |No |Fiscal: |No |
------------------------------------------------------------------
-----------------------------------------------------------------
|Consultant:|Nidia Bautista |
| | |
-----------------------------------------------------------------
SUBJECT: Telecommunications: wireless telecommunication
facilities
DIGEST: This bill requires a collocation or siting
application for a wireless telecommunications facility to be
deemed approved by the local land use agency, if specified
conditions are met, and applies these provisions to all counties
and cities.
ANALYSIS:
Existing law:
1)Establishes specified limitations, preemptions and
preservation of local zoning authority in relation to the
siting of personal wireless service facilities as part of the
many provisions of the Federal Telecommunication Act of 1996.
(47 United States Code §332)
2)Provides that except as noted in the Federal Telecommunication
Act of 1996, nothing in the Act shall limit or affect the
authority of a state or local government or instrumentality
thereof over decisions regarding the placement, construction,
and modification of personal wireless service facilities. (47
United States Code §332)
3)Establishes that the regulation of the placement,
construction, and modification of personal wireless service
facilities by any state or local government or instrumentality
thereof - (i) shall not unreasonably discriminate among
providers of functionality equivalent services; and (ii) shall
AB 57 (Quirk) Page 2 of ?
not prohibit or have the effect of prohibiting the provision
of personal wireless services. (47 United States Code §332)
4)Establishes that a state or local government shall act on any
request for authorization to place, construct, or modify
personal wireless service facilities within a reasonable
period of time after the request is duly filed with such
government, taking into account the nature and scope of such
request. (47 United States Code §332)
5)Requires that any decision by a state or local government to
deny a request to place, construct, or modify personal
wireless service facilities shall be in writing and supported
by substantial evidence contained in a written record. (47
United States Code §332)
6)Provides that no state or local government may regulate the
placement, construction, and modification of personal wireless
service facilities on the bases of the environmental effects
of radio frequency emissions to the extent that such
facilities comply with the Federal Communications Commission
(FCC) regulations concerning such emissions. Allows any person
adversely affected by an act or failure to act by a state or
local government that is inconsistent with the FCC compliance
requirements related to radio frequency emissions may petition
the FCC for relief. (47 United States Code §332)
7)Provides that any person adversely affected by any final
action or failure to act by a state or local government that
is inconsistent with this subparagraph may, within 30 days
after such action or failure to act, commence an action in any
court of competent jurisdiction. The court shall hear and
decide such action on an expedited basis. (47 United States
Code §332)
8)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. (California Government Code §65850.6)
9)Provides that no state or local statute or regulation, or
other state or local legal requirement, may prohibit or have
the effect of prohibiting the ability of any entity to provide
any interstate or intrastate telecommunications service. (47
United States Code §253)
AB 57 (Quirk) Page 3 of ?
10)Provides 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. (47 United States Code §1455
(a))
11)Provides that a wireless telecommunications collocation
facility shall be a permitted use not subject to a city or
county discretionary permit if it satisfies several
requirements, as specified. (California Government Code
§65850.6)
This bill:
1)Provides that a collocation or siting application for a
wireless telecommunications facility is deemed approved, if
two conditions are met: (1) the city or county fails to
approve or disapprove the application within the time periods
established by the FCC in its Declaratory Ruling of 2009 and
(2) all required public notices have been provided regarding
the applications.
2)Includes legislative findings 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.
Background
The use of wireless communications has grown exponentially in
recent decades with the advent of new mobile devices, including
smartphones and tablets. As society becomes increasingly reliant
on wireless communications for business, education, safety, and
leisure activities, wireless infrastructure is challenged to
keep pace with consumer demand for faster and more reliable
connectivity. A key component of the necessary infrastructure is
AB 57 (Quirk) Page 4 of ?
a network of wireless facilities, specifically towers and other
antenna, which utilize radio frequency to allow users to connect
with voice and data transfers on their devices. With the
adoption of the Federal Telecommunications Act of 1996, the U.S.
Congress established federal law regarding wireless
communications that on-the-one-hand, generally preempts state
and local regulation of wireless services and partially preempts
some local zoning and building regulations. Conversely, the
Federal Telecommunications Act of 1996, with some exceptions,
largely preserved the authority of states and local governments
to determine decisions regarding the placement, construction,
and modification of personal wireless service facilities.
The shot clock - defining "Reasonable Period of Time." In 2009,
the FCC adopted a Declaratory Ruling in response to a petition
by the wireless industry requesting clarification of the
wireless communications provisions adopted in the Federal
Telecommunications Act of 1996. Among the elements of the Act
discussed, the Declaratory Ruling addressed what constitutes a
"reasonable period of time" after which an aggrieved applicant
for a tower may file suit asserting a failure to act by the
local land use agency. The petitioner, CTIA - The Wireless
Association, had compiled more than 3,300 pending personal
wireless service facility siting applications before local
jurisdictions and argued that the local jurisdictions were
hindering the pace of wireless communications growth. The ruling
concluded there is a need to establish separate timeframes for
facilities on pre-existing structures (collocation) and those on
new sites. The FCC noted that a reasonable period of time is,
presumptively, 90 days to process personal wireless service
facility for collocation applications and 150 days for the
review of siting applications other than collocations. These
timeframes were upheld in a related court case, City of
Arlington, Texas vs. FCC.
FCC provides local governments flexibility. In the Declaratory
Ruling, the FCC argued that some applications may require more
time for review and that such time should be granted. The FCC
further noted that the additional time could lead to
collaborative solutions among the governments, wireless
providers, and affected communities. The ruling further
clarified that the reasonable period of time may be extended by
mutual consent of the personal wireless service provider and the
State or local government, and that in such instances, the
commencement of the 30-day period for filing suit will be
AB 57 (Quirk) Page 5 of ?
tolled.
FCC rejects "Deemed Approved" approach. The ruling further
stipulated that if a local agency did not act within those
timeframes then a "failure to act" has occurred and personal
wireless service providers may seek redress in a court of
competent jurisdiction. However, the ruling also stipulated a
reluctance by the FCC for a presumption in favor of a
court-ordered injunction granting the application. Rather, the
FCC adopted an approach whereby the court would review the
record to determine the appropriate remedy. Furthermore, the FCC
explicitly rejected the petitioner's proposal that the ruling go
farther and deem an application granted when a state or local
government has failed to act within a defined timeframe or adopt
a presumption that the court should issue an injunction.
Need for more federal clarification. The Middle Class Tax
Relief and Job Creation Act of 2012 was signed into law by
President Barack Obama as an effort to extend a payroll tax
exemption, but the Act also included provisions regarding
wireless facilities. Specifically, the new law further limited
the ability of the state and local government in siting
collocation facilities that did not substantially change the
existing structures by deeming those applications approved,
based on specified criteria.
On January 8, 2015, the FCC published a final rule in the
Federal Register titled, "Acceleration of Broadband Deployment
by Improving Wireless Facilities Siting Policies." The rule
provided further clarification of the telecommunications
provisions of the Middle Class Tax Relief and Job Creation Act
of 2012, including more specific definition regarding what
constitutes a modification that "substantially changes" the
physical dimensions of an existing tower or base stations, as
well as, applying the provision to support structures and
transmission equipment in connection with a wireless facility.
The rule explicitly noted the need for a state or local
government to approve an application meeting the specified
criteria to be approved within 60 days from the date of filing,
accounting for tolling. Furthermore, the final rule provided
that states and local governments could continue to enforce and
condition approval on compliance with generally applicable
building, structural, electrical, and safety codes.
The FCC final rule also provided further clarification for the
AB 57 (Quirk) Page 6 of ?
2009 Declaratory Ruling by specifying a more specific timeline
for notifying an applicant of an incomplete application and
opportunities to toll the shot clock (as noted below).
Moreover, the final rule stated that should a state or local
government institute a moratorium on wireless facility
applications for that jurisdiction, the shot clock will still
apply. However, the applicant may need to take the local
government to court to seek a remedy. Lastly, the FCC's final
rule noted the FCC "?concludes that the explicit remedies under
Section 332(c)(7) preclude adoption of a deemed granted remedy
for failures to act."
Summary 2015 final rule "Reasonable Period of Time":
Initial submission: The shot clock begins when the
application is filed.
Within the first 30 days: The local government must
notify the applicant if the application is incomplete and
the specific ordinance/provision/ application requirement.
At this point, the shot clock will be tolled until the
information is submitted.
Within 10 days from resubmittal: The local government
can toll the shot clock if the applicant is notified that
the supplemental submission did not provide the specific
information requested.
The clock can continue to be tolled should there be
incomplete information as identified within the first 30
days, but not any newly identified incomplete information.
Questions for the Senate Energy, Utilities and Communications
Committee
As the Senate Energy, Utilities &Communications (EU&C) Committee
considers this bill proposal, the committee may wish to consider
the following questions:
What is the state's priority? The state is forced to consider
the need to preserve local authority regarding land use
decisions, including the siting of a wireless facility, versus
the importance of ensuring wide coverage and fast speeds for
wireless communications. The increased use in wireless
telecommunications technology, the overall importance of
broadband for schools and the economy, and the need to ensure
wireless 9-1-1 can come in direct conflict with the political
realities of residents not wanting a cell tower on, around or
near their property.
AB 57 (Quirk) Page 7 of ?
Do we intend to include all broadband? AB 57 speaks directly to
wireless facilities that provide broadband access to mobile
devices. However, California also has landline broadband
providers who are interested in expanding the bill to include
their technologies, including cable companies.
Will local governments be inundated with requests for wireless
facilities that will overwhelm their capacity? Based on federal
law, a state or local government can not simply deny an
application. Federal law requires the local government must
develop an evidentiary record to support a denial decision.
What are the limitations to the state and local government's
ability to address health concerns related to radio frequency?
As noted above (under existing law), the Federal
Telecommunications Act of 1996 limits the consideration of the
environmental effects of radio frequency emissions by states and
local governments in so far as a proposed project is in
compliance with FCC requirements. Furthermore, the law requires
that any remedies for those projects that are out of compliance
must be addressed by the FCC. In short, the Act largely preempts
states and local governments from adopting any standards above
and beyond the federal government.
Is the intention to prioritize wireless facility applications
above other permit requests? Local governments receive permit
applications for a wide variety of projects and they are
routinely backlogged and overwhelmed. However, those other
project requests may not necessarily have their own shot clocks.
Questions for Committee on Governance and Finance
Since AB 57 is double-referred to the Senate Governance and
Finance Committee, questions more directly related to local
government responsibilities, such as: addressing requirements of
the California Environmental Quality Act (CEQA); ensuring
adequate public notice; adequately responding to building and
fire safety codes and review; and any others, may be best
addressed in that committee (should this bill successfully be
voted out of the Senate EU&C Committee).
AB 57 (Quirk) Page 8 of ?
Suggested Amendments:
The author and committee may wish to amend the bill to
explicitly include other provisions of the Declaratory
Rulemaking, including the ability of the parties to toll the
shot clock.
Prior/Related 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 Assembly Local Government Committee
but was never heard.
SB 1627 (Kehoe, Chapter 676, Statutes of 2006) required that a
city or county to administratively approve, through the issuance
of a building permit or nondiscretionary permit issued by the
planning department, an application for a collocation facility
on or immediately adjacent to a wireless telecommunication
facility that complies with specified state and local
requirements for such projects. The bill expanded the definition
of the term "development project" within the Permit Streamlining
Act to include projects involving the issuance of a permit for
construction or reconstruction for a wireless telecommunications
facility. Additionally, SB 1627 prohibited a development project
for a wireless telecommunications facility from being subject to
a permit to operate.
FISCAL EFFECT: Appropriation: No Fiscal
Com.: No Local: No
SUPPORT:
AT&T
CTIA - The Wireless Association
California Chamber of Commerce
AB 57 (Quirk) Page 9 of ?
California Manufacturers & Technology Association
California Wireless Association
National Emergency Number Association - The 911 Association
PCIA - The Wireless Infrastructure Association
Silicon Valley Leadership Group
Sprint
T-Mobile
TechAmerica
TechNet
Valley Industry and Commerce Association
Verizon
World Institute on Disability
OPPOSITION:
American Planning Association - California Chapter
Association of Environmental Professionals
Brentwood Community Council
BVW
California State Association of Counties
City of Burbank
City of Calabasas
City of Cerritos
City of Corona
City of Diamond Bar
City of Fremont
City of Glendale
City of La Caņada Flintridge
City of Lakewood
City of Oxnard
City of Pico Rivera
City of Roseville
City of San Francisco
City of San Gabriel
City of Seaside
City of Torrance
City of Vista
City of Whittier
County of San Diego
County of San Francisco
Ecological Options Network
League of California Cities
Marin County Council of Mayors and Council
Marin Telecommunications Agency
AB 57 (Quirk) Page 10 of ?
National Association for Children and Safe Technology
Pacific Palisades Community Council
Palisades Preservation Association
Rural County Representatives of California
Town of Fairfax
Urban Counties Caucus
Several Individuals
ARGUMENTS IN SUPPORT: The author states that "consumers' use
of wireless broadband service continues to increase? putting
ever-growing capacity demands on wireless networks.
Consequently, providers are making massive investment in new
wireless cell sites, additional equipment at existing sites.
While the FCC's regulation 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."
"CTIA - The Wireless Association states that the demand for
wireless broadband is growing exponentially as new applications,
devices and technologies consume more bandwidth and attract more
subscribers. Wireless infrastructure is critical to meet the
public's increasing demand for wireless services. .. But, in
California, the local approval process for needed wireless
facilities is often unworkable. Decisions can take years and
halt needed improvements."
ARGUMENTS IN OPPOSITION: Local governments in opposition state
that AB 57 goes beyond the requirements of federal law and the
FCC's Declaratory Rule by deeming an application approved.
Wireless telecommunications companies are generally required to
obtain various state and local zoning approvals before building
a new wireless facility or collocating equipment at an existing
wireless facility. The local government associations also state
that the "FCC refused to adopt the industry's request to issue a
deemed approved rule." AB 57 "fails to include references in the
2009 Ruling," including tolling provisions. Wireless
telecommunications facilities are matters best addressed by
local governments."
AB 57 (Quirk) Page 11 of ?
-- END --